TURKEY'S SOCIAL SECURITY INSTITUTION (SGK) HAS ANNOUNCED NEW CODE 29 REGULATION
The employer's right to termination with a valid reason is regulated in the 25th article of the 4857 numbered Labor Law. However, the employer frees the employee from the obligation to pay both wages (notice pay) and severance pay for the notice prerequisites in the presence of the reasons specified in the clause "II" titled "Situations that do not comply with the rules of ethics and goodwill and the like" of article 25. For this reason, the employer's dismissal of the employee according to the 25 / II clause of the Labor Law numbered 4857 is also called "termination without compensation”. When the employer dismisses the employee based on Article 25 / II of the Labor Law, the employee not only deprives the severance pay rights but also cannot benefit from unemployment insurance.
WHAT IS CODE 29?
According to the 8 and 9 articles of the Social Insurance and General Health Insurance Law numbered 5510, the employer has to notify the Social Security Institution (SSI) before hiring the worker and the time of the dismissal of a worker. SSI summarized each dismissal reason with a numerical code. The equivalent of Code 29 meant that dismissal was made based on the employer's "situations that do not comply with the rules of ethics and goodwill and so forth”.
However, reporting almost all of the different termination reasons with the same code (Code-29) caused uncertainties. In addition, in order not to be stuck with the termination restriction, many employees were dismissed by using Code-29, even if the worker did not comply with the rules of ethics and goodwill.
For this reason, the SSI stated that separate codes were determined for each of the reasons for dismissal under the heading "situations that do not comply with the rules of ethics and goodwill", which are among the exceptions to the termination constraint.
WHAT HAS CHANGED WITH THE NEW REGULATION?
With the amendment made in the SSI circular, separate codes have been determined for all cases that do not comply with the rules of ethics and goodwill. In this way, it is aimed to prevent possible problems by ensuring that different termination reasons such as unexcused absence and theft are made with different notification codes.
With the regulation being talked about, different reasons for termination with different codes were determined as follows:
Code 42- When the employment contract is concluded, the employee misleads the employer by claiming that he/she does not have the qualifications or conditions required for one of the essential points of this contract, or by saying unrealistic information or words.
Code 43- When the worker makes words or acts that will affect the honor and reputation of the employer or one of their family members or makes unfounded denunciations and imputations about the employer.
Code 44- If the employee sexually harassed another employee of the employer.
Code 45- If the employee teases the employer or one of the employer’s family members or another employee of the employer, comes to the workplace drunk or on drugs, or uses these substances in the workplace.
Code 46- If the worker behaves that do not comply with honesty and loyalty, such as abuse of the trust of the employer, stealing, revealing the professional secrets of the employer.
Code 47- Commits of an offense by the worker in the workplace that is punished with more than seven days' imprisonment and whose sentence is not suspended.
Code 48- If the employee does not continue to work for two consecutive business days or two times in a month, on a working day after any holiday, or three working days in a month without obtaining permission from the employer or for a justifiable reason.
Code 49- The employee's insistence on not doing the tasks he/she was assigned to do even though he/she was reminded.
Code 50- If the worker endangers the safety of the work due to his own will or his negligence, damages and loses the machines, installations, or other goods and items that are owned or not owned by the workplace, but which cannot be paid for the amount of their thirty-day salary.
Provisional Article 10 of Labor Law numbered 4857, which regulates the prohibition of dismissal imposed on the employer, does not prohibit the worker from dismissal based on the reasons of "situations that do not comply with the rules of ethics and goodwill and the like" regulated in Article 25 / II of the Labor Law. Prohibited dismissal is the employer dismissing a worker for a valid reason by paying compensation. In the place where dismissal by paying compensation was prohibited, the employer had the opportunity to dismiss workers by marking "CODE 29" in the termination notice made by the employer to the SSI, without any cost.
No way was left for the worker, except to go to court and prove that there was no valid reason. To reduce the negative effects of this situation on working life and to make it more systematic, a new arrangement was made in the SSI circular.
When it was seen that the notification of all different termination reasons with the same code (Code-29) caused uncertainty in working life, separate codes were determined for all cases that do not comply with the rules of ethics and goodwill with the amendment made in the SSI circular. In this way, it is aimed to prevent possible problems by ensuring that the termination reasons in distant issues are made with different notification codes. Even this change is an indicator of the problems caused by the Code-29 and the lawlessness experienced. The employer who claims that the termination prohibition is a justified reason for termination to stop the abuse of the termination authority by the employer, should submit the objective facts showing the existence of this reason to the labor court and use the right of termination by obtaining permission from the labor court.
If the labor court referred to dismiss a worker decides that there are strong indications that there is a suitable causal relation between the termination of the employment contract and the termination reasons given by the employer for justified termination, it must allow for termination with a valid reason.