Information On Coronavirus (Covıd-19)
Within the scope of the Coronavirus (Covid-19) epidemic taking effect across the world, as well as in Turkey, we would like to provide you with summary information you regarding the following: (A) Bener will continue to provide services as always, (B) your rights/obligations in respect of your employees and (C) your rights/obligations regarding your agreements. You may find the details below.
A. BENER’S ACTIVITIES
In order to observe the health and safety of our employees and to prevent spread of the virus, we, as Bener, have commenced remote working and minimum number of employees is physically present at our office at the moment. During the Remote Working Practice, we will continue to provide our legal services to our clients with all of our staff with full capacity as always.
B. IN RESPECT OF YOUR EMPLOYEES
Pursuant to Occupational Health and Safety Law and other related legislation, the employers are obliged to provide health and safety of their employees regarding the work, analyze the risks and take the necessary precautions. In this respect, in the event an employee is infected with coronavirus during his/her work, travel for work purposes, this situation may be considered as occupational accident.
Within the scope of the above matters, it is advised to deliver the instructions and suggestions regarding protection from the virus to the employees in writing (for example, compliance with hygiene rules, avoiding hand shaking and contact as much as possible, avoid being in crowded locations etc.) and taking relevant precautions at the workplace (for example, conducting works related hygiene at the workplace, delivering masks to the employees etc.). In such case, in the event of a potential infection, although this situation is considered as an occupational accident, the fault ratio of the employer may be considered lower and in such case, the obligation of the employer may be lower.
There are certain actions that may be taken by the employers and the employees in respect of Labor Law. Please find below summary information in relation to some of those actions.
a. Requesting the Employees to Use Their Unused Paid Leave Days:
In consideration of the current status, we are of the opinion that the employers may request from their employees to take paid leave days.
b. Requesting the Employees to Take Unpaid Leave:
Unpaid leave implementation is considered as material change in the employee’s employment conditions as per Labor Law; therefore, the employees’ written consents must be obtained in this respect, since unilateral implementation of unpaid leave by the employer will be considered as unilateral termination of the employment agreement by the employer.
In the light of this information, if it is requested to implement unpaid leave at the workplace, the written consents of the employees must be obtained and unpaid leave must not be implemented in respect of employees that do not provide their consent in this respect.
c. Collective Leave:
Employers may implement collective leave at the workplace, which covers whole or a part of the employees as of the beginning of April until the end of October. Additionally, employees that are not entitled to leave as of the date of the collective leave may also be included in the collective leave implementation. Please be reminded that the consents of the employees may also be required in some cases.
d. Part-time Employment:
Until the risk related to the Coronavirus is removed, the employers may implement parttime employment at the workplace by obtaining prior written consents of the employees pursuant to article 22 of Labor Law (or by agreeing with the employees mutually and signing additional protocols in this respect).
We would like to remind you that in part-time employment, the working period of each employee must be equal to 2/3 of the normal working period at such workplace.
e. Remote Working:
In remote working, the employee performs works at home or outside of the workplace by way of use of technological communication devices.
In current situation of the Turkey, in order to ensure the health of the employees and the public, it is seen that the employers have started to adopt remote working.
f. Short-time Working:
Short-time working is an implementation, which aims to support the employment agreements and the companies by way of payment of short-time employment allowance that will be provided from the unemployment insurance fund, instead of termination of employment agreements in cases of force majeure events.
In such case, the working period at the workplace is decreased temporarily at the rate of at least 1/3 in a part or whole of the workplace or the activities at the workplace are ceased completely or partly for at least 4 weeks due to general economic, sector-specific or regional crisis and force majeure events. The period of short-time working is 3 months as a rule and such period may be extended to 6 months by the President of Turkey.
In order to implement short-time working at the workplace, the employers must file an application before Turkish Employment Agency (and the union at the workplace that is the party to the collective agreement, if any) in writing. If Turkish Employment Agency consents to such requests of the employers, short-time working may be applied by the employers at the workplace.
The short-time working allowance amounts to 60% of the daily average gross income of the employee, which is calculated in consideration of the relevant employee’s income taken as basic to premium in the previous 12 months, provided that it does not exceed 150% of the gross monthly minimum wage applied for employees and it is paid by Turkish Employment Agency for the duration of the short-time working, provided that it does not exceed 3 (three) months.
g. Termination of the Employment Agreement with Just Reason:
Pursuant to labor legislation, in case of presence of force majeure events at the workplace which will suspend the work for a period more than 1 (one) week, the employees may terminate their employment agreements with just reason. Employers might be able to terminate the contracts with just causes under certain circumstances as well.
In case of a force majeure event and if such force majeure event is accepted by the government, half pay may be made to the employees for 1 (one) week within the scope of Labor Law and in such case, the employees may terminate their employment agreements with just reason pursuant to Labor Law following the completion of such period of 1 (one) week and request making of their severance payments.
C. IN RESPECT OF YOUR AGREEMENTS
a. In respect of Workplace Lease Agreements:
Coronavirus epidemic and the precautions taken in this respect must also be evaluated in relation to workplace lease agreements, since the epidemic and the precautions taken may cause negative effects regarding the activities of the businesses. A lot of public entertainment and resting areas are closed temporarily as of 16.03.2020.
In respect of the lease agreements, to which such businesses are parties, when we determine whether there are changes to rent and other payment liabilities in accordance with such issue, since it is not arising from the landlord, in other words, since the landlord continues to keep the leased property available for use and the relevant situation will be considered as a risk regarding the sector, in which the tenant is performing activities, we
are of the opinion that pursuant to the general principles of Turkish Code of Obligations, it must be accepted that the tenant’s liability to pay rent and other payments determined under the agreement (common expenses etc.) will continue. If the lease agreement consists of minimum rent and turnover rent, in such case, the minimum rent must be paid as set out in the agreement; however, since the turnover rent depends on the turnover obtained from the leased property, the decrease in activities will ensure that the turnover rent is decreased in the same ratio.
On the other hand, if the government takes a resolution to close the workplaces and/or shopping centers permanently, it will be a mandatory regulation and we are of the opinion that, in this case, the tenants’ obligation to pay as per the lease agreement will be suspended. If the closing with the resolution of the government continues for a period of
5-6 months, the tenant may terminate the agreement with just reason or request from the judge to adjust the lease agreement as regulated under article 138 of Turkish Code of Obligations.
In the light of the information stated above, if the workplace is closed without being subject to a resolution taken by the government, we are of the opinion that the lease agreement will continue to be effective as is.
b. Other Agreements:
The effects of the Coronavirus epidemic and the precautions taken by the government on the rights and liabilities of the parties in respect of other types of agreements must be evaluated separately. We may make such evaluation upon your request.