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Severance and Notice Pay Rights of Foreigners Based on Their Employment in Turkey
We kindly invite you to read our article, “What Are The Severance and Notice Pay Rights of Foreigners Based on their Working in Turkey“, which was written by the MGC Legal team. Here are the details:
Severance and Notice Pay Rights of Foreigners in Turkey
The first condition for being entitled to severance pay is to work as a dependent of an employer under the Labor Law. According to article 1 of Labor Law No. 4857, except for the exceptions in article 4, all workplaces, employers, employer representatives, and workers of these workplaces are subject to the Labor Law. For this reason, the Labor Law covers foreign workers working in Turkey, except those shown as exceptions.
Work permits for foreigners are as follows; if they are working with any of the special work permits such as temporary work permit, indefinite work permit, independent work permit, turquoise card, company manager position, board member position, and partnership, these foreign workers are also subject to the Labor Law as they work dependent on their employers. Therefore, it is certain that a foreigner who works independently of the listed permits will not be entitled to the employee’s severance pay.
The important thing is not that the worker is a citizen of the Republic of Turkey or a foreign national but that they have the conditions to qualify for severance or notice pay.
Severance pay is a right regulated in article 14 of the abolished Labor Law No. 1475, which is the only article still in force. Article 14 of Labor Law No. 1475 lists the conditions for receiving severance pay, and no distinction is made between a foreign worker and a citizen of the Republic of Turkey. For the foreign worker to benefit from severance pay:
- The employee must have worked at the workplace for at least one year. The time periods of the same employer in different workplaces are combined. In case the workplace has been transferred, the sum of working hours at the old and new employers is taken as a basis.
- The employee must terminate the employment contract within six working days based on at least one of the reasons stated in article 24 of the Labor Law, or the employer must dismiss the worker without a justifiable reason pursuant to the Labor Law.
- As a rule, the employee is not paid severance pay if they want to leave the job without a justifiable reason. However, there are three exceptions to this situation when: if the married female worker leaves the job voluntarily within one year after her marriage or if the worker who is due for compulsory military service leaves the job due to active military duty, the worker who has 15 years passed since the first insurance entry, and whose total number of insurance premium days is at least 3600 days or if the employee leaves the job by submitting a letter from SSI stating that they deserve retirement, the employee is entitled to receive severance pay even if they resign without giving any justification.
- In the event that the worker dies, it is obligatory to pay severance pay to the legal heirs of the worker, regardless of whether the worker has died in the workplace or elsewhere. The only condition sought here is that the employee must have worked at that workplace for at least one year.
Foreign workers working in Turkey have the right to demand severance and notice pay even if employed without insurance. The foreign worker has the right to file a service determination case for the period of uninsured work. However, filing a service determination lawsuit is optional before filing a severance pay lawsuit. However, if the worker has filed a service determination lawsuit in addition to the severance pay lawsuit, the court makes the outcome of the service determination lawsuit a “holding issue” this time.
Regarding the subject, in the decision numbered E. 2014/9313 of the 7the Civil Chamber of the Court of Cassation;
“The court decided to reject the case because the plaintiff’s employment is uninsured, a service determination lawsuit should be filed first to prove the existence of the work, an investigation should be made in terms of receivables after confirming the existence of the service, and a lawsuit has not been filed in terms of filing a service determination lawsuit against the plaintiff, despite the fact that the lawsuit could not be proven. The plaintiff filed a lawsuit for the collection of workers’ receivables. No one can be compelled to file a service determination lawsuit. The service determination case concerns the right to social security. A person does not necessarily have to be covered by SSI to be considered a worker. It is seen that the plaintiff’s witnesses gave concrete information about the duration of the plaintiff’s work with the defendant and the working days and hours. While the lawsuit filed for these reasons should be evaluated on the merits according to the collected evidence, its rejection with an unfounded justification is erroneous and is a reason for annulment.” Points has been emphasized.
It does not matter whether the foreign worker is a foreign national or a citizen of the Republic of Turkey for the foreign worker to be entitled to notice pay. If the foreign worker meets the necessary conditions, just like the Turkish citizen worker, they will have the right to receive notice pay. The conditions of the notice pay are regulated in article 17 of Labor Law No. 4857. In order to be entitled to notice pay in accordance with the aforementioned provision of Law;
- The employment contract between the employee and the employer must be an “indefinite term contract”. In case of a fixed-term employment contract or exit during the probationary period, no notice pay can be claimed.
- The employer must not have terminated the contract on the basis of justifiable reasons in article 25 of the Labor Law.
- The employment contract must be terminated without giving a notice period. According to article 17 of Labor Law No. 4857, the party to terminate the contract must notify the other party before the termination. In the Law, the notification period is stipulated according to the working period. The party that does not comply with the notification requirement set out in the Law has to pay compensation in the amount of the fee related to the notification period.
It is obligatory for foreign national workers working in Turkey to apply to the mediation institution to file a severance and notice pay case, just like Turkish national workers. In the event that a lawsuit is filed without an application to the mediation institution, the lawsuit will be dismissed procedurally.
Finally, in lawsuits filed by foreign workers working in Turkey regarding labor claims, the Labor Court of the place of residence of the defendant, real or legal person on the date of the lawsuit, and the Labor Courts of the place where the work or transaction was carried out shall be authorized.
Conclusion
Foreign workers are also subject to the Labor Law, provided that they work with any work permit, including a temporary work permit, an indefinite work permit, an independent work permit, a turquoise card, and special work permits for company directors, members of the board of directors and partners. Therefore, no distinction is made between these foreign workers and workers who are citizens of the Republic of Turkey to qualify for severance and notice pay.
The important thing is not that the worker is a citizen of the Republic of Turkey or a foreign national but that they have the conditions to qualify for severance pay or notice pay. If the foreign worker meets the requirements, just like the Turkish citizen worker, they will have the right to receive severance and notice pay.
Keywords: Severance and Notice Compensation Rights of Foreign Employees, Foreigners’ Right to Severance and Notice Compensation, Severance and Notice Pay Rights, Severance and Notice Pay Rights of Foreigners.
