NEWSLETTER-2019-metin

60 NEWSLETTER 2019 of employees, are specifically aimed at instances of spin-offs, and are aimed to protect employees affected by spin-off transactions 4 . To that end, pursuant to Article 178(1), in full or partial spin-offs, “ the employee contracts shall be transferred to the transferee with all the rights and obligations arising until the transfer date, unless the employee objects. ” As is clearly observed, the TCC has a specific provision that allows the employees the opportunity to object to the transfer of their employee contracts. In such a case, the employee’s contract shall be terminated at the end of the notice period. In addition, under Article 178(3), the TCC stipulates that the previous employer and the transferee shall be jointly liable for the em- ployee’s claims/amounts due prior to the spin-off, or due to the termi- nation of the contract on the objection of the employee. As observed, different from the Labor Law, the TCC does not limit the joint liability rule to two years which, arguably, provides the employees with added protection. However, due to the reasons explained, above, it can be argued that this provision shall also not be applied to instances of full spin-offs. Rights and Obligations to be transferred Both the Labor Law and the TCC refer to the transfer of rights and obligations of the employee, and opt out to define these rights and obligations. It may be argued that wages, bonuses, overtime wages, holidays and relevant payments, shall be considered as the rights of employees to be transferred. In addition, payments that have accrued due to the termination of the employee’s contract, such as payments in lieu of notice and severance payments, are also in the nature of the rights of the employees to be transferred. There is no clear provision that stipulates the right to severance payment arises if the employee objects to the transfer, pursuant to Article 178(1). However, it may be argued that considering the aim of the provisions, which is to protect the employees, and that the TCC has provided a specific right to object to the transfer, the employee should not lose any rights if he/she so objects. 5 4 Süzek, Sarper : İş Hukuku, Istanbul, 2013, p. 202. 5 Süzek , p. 205; 9. CC, E. 2015/28060, K.2018/22719.