Effects of the Force Majeure Concept in Labor Law
Introduction
The novel coronavirus (“Covid-19”) detected firstly on 31.12.2019 in the city of Wuhan, which is in the Hubei State of China, was subsequently declared as a pandemic by the World Health Organization. Taking the contagiousness and harm caused by the disease into account, governments have taken many measures to minimize the effects of the Covid-19 that will be inflicted on their countries. The most common of these measures are social distancing, curfews in various forms, and temporary changes made to legal legislation. These measures have implications in working life, as well as in the economic and social fields. Accordingly, the effects that started to produce results in many areas will also manifest themselves in the field of labor law and, after this process, it may lead to an increase in disputes.
In this Article, while analyzing the effects of the Covid-19 in labor law, which is currently considered as a force majeure, the measures carried out to reduce the impact of the epidemic from the time it started to show its effects in Turkey, and the possible consequences of these measures, will be discussed.
The Concept of Force Majeure
Although in many articles of Labor Code No. 4857 (“Labor Code”),[1] the possible effects that a force majeure may result in during the performance of employment agreements have been stipulated, the definition of this concept is not regulated. However, in the Regulation on Short-Term Working and Short-Term Working Allowance (“Short-Term Working Regulation”), which is based on the Labor Code and Unemployment Insurance Law No. 4447 (“Unemployment Insurance Law”), a force majeure is regulated as periodical conditions that have not originated from the employer’s own management, are unforeseen and, therefore, unpreventable, and result a temporary decrease in working time, or a complete or partial termination of activity or conditions, such as earthquake, fire, flood, landslide, epidemic, or mobilization. Thus, the Covid-19 pandemic is considered as a force majeure.
In many fields of law, the concept of force majeure is defined as extraordinary reasons that are inevitable and unpreventable, and which result in the deficiency of the obligor in his/her undertaking, or fails in his/her performance by disconnecting the causal relation; however, the results that may arise from a force majeure may vary. For instance, under Article 134 of Turkish Code of Obligations No. 6098, entitled, “Impossibility of Performance”, it is regulated that the obligation is deemed extinguished where its performance is rendered impossible by circumstances not attributable to the obligor. However, as a rule, force majeure in labor law does not automatically terminate the employment agreement. If a force majeure has caused the impossibility of temporary performance, this is considered as a suspensive reason in terms of employment agreements.[2] Therefore, an employment agreement continues to exist in the suspension process, but the basic obligations of the parties are delayed within this period.[3]
Force Majeure Articles Regulated Under Labor Law Legislation
Some remedies are envisaged in labor law legislation in order to prevent the parties from suffering due to a force majeure. These are the rights, such as the concept of short-term working, which have experienced much application recently, as well as the parties’ right to terminate the employment agreement with valid reasons.
The concept of a force majeure is regulated under Articles 24/1,III and 25/1,III of the Labor Code. Pursuant to the text of the Articles, a force majeure may originate from the employee or the employer. Accordingly, if a force majeure event requires termination of activity for more than one week in the workplace of the employee, then the employee may terminate the employment agreement for a valid reason; in the event of a force majeure that prevents the employee from working in the workplace for more than one week, then the employer may terminate the employment agreement with a valid reason.
Through following Article 40 of the Labor Code, it is regulated that the employee who cannot work, or cannot be employed due to a force majeure as stipulated under paragraphs (III) of Articles 24 and 25, will be paid for one-half day, for up to one week, in this waiting period. In addition, pursuant to Article 46/5 of the Labor Code, it is regulated that the half-wages paid to the employees for days not worked due to a force majeure will be paid for weekend days, as well.
Pursuant to Article 42 of the Labor Code, provided that it does not exceed the degree that will ensure the normal operation of the workplace, the employer shall overwork the employees who cannot work in the workplace due to force majeure.
Pursuant to Article 55/1,d of the Labor Code, in the annual leave calculation of the employee, it is regulated that due to termination of activity of more than one week as a result of a force majeure, the first fifteen days of unemployment is considered as having been worked.
Finally, through Article 64 of the Labor Code, it is regulated that the employer can perform compensatory work for periods of not working, within four[4] months, in cases where activity is terminated due to a force majeure, or working is significantly below normal working hours.
In addition, although a force majeure is not mentioned in the text of the Article, the Regulation under Article 22 of the Labor Code may be referred to in terms of implementations realized during a force majeure process. Accordingly, flexible working methods that are implemented by the employer to reduce the effects of the force majeure may be considered as a substantial alteration of the employee’s working conditions and, if the employee does not have written consent for these substantial and opposed alterations, this may give both parties the right to terminate the agreement for valid reasons, if these circumstances occur.
The concept of short-term working, which is currently included under the Short-Term Working Regulation, is regulated as a method to be applied if the work is decreased, or is partially or completely ceased, due to a force majeure.
Impact of the Provisions in the Labor Legislation on the Case at Hand
Along with extended healing processes, 14-day quarantine periods, and partial curfews imposed by the administration (state officials) in order to prevent the spread of the disease, the Covid-19 epidemic has shown its negative effects on working life.
In addition to the amendments introduced in many areas within the scope of the fight against the Covid-19, firstly, workplaces in certain sectors have been temporarily closed by the administration, then curfew was imposed on individuals aged 65 and over, as well as those with chronic diseases and, finally, for some cities, curfews (with exceptions) have been introduced on the weekends. In addition, in order to take the necessary measures arising from occupational health and safety legislation, flexible working models have begun to be applied in workplaces that are not closed, or are not within the scope of the curfews.
As mentioned, above, aside from considering this epidemic disease as a force majeure, decisions affecting social and economic life given by the administration are also considered as a force majeure. Therefore, the mandatory closure of workplaces due to administrative measures is deemed as a force majeure that has arisen from the workplace. On the other hand, the fact that the employee is within the scope of curfew due to his/her age being 65 or over, or due to his/her having a chronic disease, is deemed as a force majeure arising from the employee. As mentioned, above, although Articles 24 and 25 of the Labor Code give the parties the right to terminate the employment agreement for a valid reason, pursuant to the jurisprudence of the Court of Cassation, good faith and termination as last resort principles, which are the basic principles of the labor law, shall be observed. If the employee is unable to come to the workplace for more than one week due to a force majeure arising from him/her as a result of an imposed administrative curfew, suitability of telecommuting systems should firstly be evaluated, prior to dismissal.
Within this context, although the application of telecommuting systems results in substantial alteration of the employee’s working conditions, pursuant to the doctrine, if these systems do not cause a decrease in the legal rights of the employee, the employee’s consent as regulated under Article 22 of the Labor Code shall not be sought due to the principle of good faith. Therefore, an employee’s termination based on the mentioned Article shall not be deemed valid.[5] If the implementation of telecommuting systems is not be possible for the job or the employee, other methods stipulated under the labor law legislation shall apply. For instance, with respect to the mentioned employee, i) it is necessary to apply firstly for short-term working[6] for the employee; if this is not possible, ii) the employee shall be encouraged to use his/her annual paid leaves; finally, if this is not possible, iii) the employee shall be extended unpaid leave. As well, since the application of unpaid leave causes a decrease in the legal rights of the employee, it shall be deemed as a substantial alteration of the employee’s working conditions. Therefore, the written consent of the employee as regulated under Article 22 of the Labor Code may become an issue. If the employee does not give consent to this alteration, the employer shall terminate the agreement stating that the alteration is for a valid reason (for instance, it being necessary for the measures to be taken due to the epidemic disease). [This opinion is not valid throughout the effective date of the termination prohibition and unpaid leave procedures stipulated under the Law numbered 7244 on Reducing the Effects of Novel Coronavirus (Covid-19) Pandemic on Economic and Social Life and Law on Amendments to Certain Laws, which entered into force on 17.04.2020.]
In addition, if the workplace is closed due to administrative measures or the employer decreases or ceases the work at the workplace, even if the workplace is not within the scope of the administrative measures, the force majeure arises from the workplace. Accordingly, and again, pursuant to the doctrine, the employee who cannot work due to cessation of activity in his sector will not be able to find a job in another workplace even if he leaves his/her current workplace. Therefore, the termination of the employment agreement based on Article 24/1, III of the Labor Code will constitute a contradiction to the principle of good faith.
Amendments Realized on the Employment Legislation During the Covid-19 Period
Some of the above-mentioned provisions are ineffective with the temporary changes introduced to the legislation, for a certain period of time, and from the effective date of the amendments. In this context, the following amendments were made in the employment legislation in order to reduce the effects of the Covid-19"s effects on social and economic life:
Benefitting conditions of short-term working has been facilitated. Accordingly, employees who provide the requirements to i) have paid unemployment insurance premiums for at least 450 days in the three years prior to the start of the short-term working and ii) have worked under an employment agreement for the last 60 days prior to the start of the short-term working, may benefit from short-term working allowance. As well, employers who are willing to benefit from short-term working is prohibited from terminating the employment agreements during this period. This amendment is in force until 30.06.2020, but the President is authorized to extend this period until 31.12.2020.
In order for short-term working applications to finalize faster, payments will be made in accordance with the employer"s declaration without waiting for suitability determination.
The compensatory working time has been extended from 2 months to 4 months. This amendment realized in the Article 64 of the Labor Code is permanent.
Cash wage support has been stipulated for the employees. 39,24 Turkish Liras daily wage support which is to be covered from the Unemployment Insurance Fund will be provided to the employees i) who have been forced to take unpaid leave by employers and who cannot benefit from short-term working allowance, and ii) whose contracts have been terminated within the scope of Article 51 after 15.03.2020, and who cannot benefit from unemployment allowance; during the 3-month prohibition of termination, and up to the period they are on leave or unemployed during this period, provided that they do not receive a pension from any social security institution.
Employers are prohibited from termination of employment. Termination of employment agreements of all employees who, whether they are within the scope of the Labor Code or not, is prohibited for 3 months as from the effective date (17.04.2020) of the Article, with the exemption of termination due to the reasons for being contrary to ethics and good faith as regulated under Article 25/1,(-II. Accordingly, terminations with valid reasons in the provisions mentioned, above, may not be executed for three months from 17.04.2020 (the President is authorized to extend this period until six months); however, it may apply to those terminations that were realized prior to 17.04.2020.
The employer was granted the right to apply unpaid leave. Accordingly, the right to give an employee unpaid leave, in whole or in part, is given to the employer for a period not to exceed 3 months, as from 17.04.2020 (the President is authorized to extend this period until six months). Similarly, the abovementioned Article 22 of the Labor Code, which regulates the substantial alteration of the employee’s working conditions, may only apply to those cases that were realized prior to17.04.2020.
An employee’s right to terminate for a valid reason is hindered. Accordingly, it is stipulated that being on unpaid leave would not give an employee the right to terminate the employment agreement for a valid reason. Similarly, the abovementioned Article 22 of the Labor Code, which regulates substantial alterations of the employee’s working conditions, may only apply to those cases that were realized prior to 17.04.2020.
Conclusion
The Covid-19 has shown its effects around the world, as well as in Turkey, and various measures have been taken to minimize these effects. As a result of these measures, which have manifested themselves in all areas, as well as in working life, some provisions in the labor law legislation find application areas. Although the legislative provisions provide various facilities and rights to the parties, to avoid legal disputes in the future, for instance, the right to terminate for a valid reason regulated under the Articles 24/1,III and 25/1,III of the Labor Code shall be evaluated with good faith and termination as last resort principles.
Lastly, it is important to take into account the implementation periods, and act accordingly, as some of the rights have been rendered impracticable within a certain period of time, with the legislative changes introduced during the Covid-19 process.[7]
[1] Articles 24/1,III - 25/1,III – 40 - 42 - 46/5 - 55/1,d - 64/1 of Labor Code No. 4857.
[2] Mollamahmutogˆlu, Hamdi; Astarlı, Muhittin; Labor Law, Ankara, 2011.
[3] Süzek, Sarper; Labor Law, Istanbul, 2019, Renewed Edition 18, pg.490.
[4] Through Law No. 7226, which is published in the Official Gazette numbered 31080 (bis) and dated 26.03.2020, the word two was changed to four. https://www.resmigazete.gov.tr/eskiler/2020/03/20200326M1-1.htm.
[5] Canikliogˆlu, Nurs¸en; Online Education on Short-Term Working, Flexible Working and Compensatory Procedures According to the Current Legislation, 17.04.2020
[6] Short-Term Working and Short-Term Working Allowance, http://www.erdem-erdem.av.tr/media/coronavirus-covid19-resource-center/shortterm-working-and-shortterm-working-allowance/.
[7] Law No. 7226 on Amendments to Certain Laws, OG No. 31080 (bis), 26.03.2020, https://www.resmigazete.gov.tr/eskiler/2020/03/20200326M1-1.htm, and Law No. 7244 on Reducing the Effects of the Novel Coronavirus (Covid-19) Pandemic on Economic and Social Life and Law on Amendments to Certain Laws, OG No. 31102, 17.04.2020 https://www.resmigazete.gov.tr/eskiler/2020/04/20200417-2.htm.
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