This Information Note (“Note“) aims to examine, under Turkish Labor Law No. 4857 (“Labor Law“), the legal mechanisms that may be applied against an employee in the event of absence from work, specifically wage deduction and the disciplinary wage deduction sanction[1].
Wage Deduction and the Distinction Between Fixed Monthly Wages and Hourly/Daily Wages
One of the mechanisms that may be applied in the event of employee absenteeism is making a wage deduction for periods during which the employee did not work, and this mechanism is different from the disciplinary wage deduction sanction defined under Article 38 of the Labor Law.
Wage deduction for employees working on a fixed monthly wage: Under the fixed monthly wage model, the employee is paid a fixed monthly wage regardless of how many days the employee worked during that month.
If an employee working under the fixed monthly wage model is absent without a valid excuse, the employee will not be entitled to wages for the day(s) of absence. Therefore,[2] in such cases the employer may apply a wage deduction. For employees receiving a fixed wage, the employee’s daily wage is calculated by dividing the fixed monthly wage by thirty, regardless of the number of days in that month. In[3] addition, because the absent employee does not satisfy the condition of “having[4] worked on the designated working days,” weekly rest-day pay may also not be paid. It should also be noted that, for days of absence without a valid excuse, it would be beneficial to prepare separate absenteeism records in the presence of witnesses for each day.
By way of example, in the case described above, if an employee receiving a fixed wage is absent for one day without a valid excuse, the calculation of the missing days will be as follows:
- In months ending with 31 days, with the weekly rest-day pay also deduction, 29 days’ wages and SGK contributions will be paid.
- In months ending with 30 days, with the weekly rest-day pay also deduction, 28 days’ wages and SGK contributions will be paid.
- In February with 28 days, with 27 + 1 day additional payment, 28 days’ wages and 27 days’ SGK contributions will be paid.
If the absence occurs on an hourly basis, no wage deduction may be made; otherwise, the issue of underpayment of wages may arise. On the other hand, if an employee working under the fixed wage system arrives late to work or leaves early, the following methods may be applied:
- Upon the employee’s written request and the employer’s acceptance, if the employee is granted a few hours of leave, the employee may subsequently perform make-up work. Wages for those hours must be paid in full.
- The employee’s defense regarding the hourly absence may be obtained, and then a written warning may be issued to the employee.
If an employee working under the fixed monthly wage model is absent with a valid excuse, then under labor legislation the employer must pay the employee’s wages for the first two days of the sick leave period; if a medical report for more than two days is obtained, the employee must be paid the difference between the temporary incapacity for work allowance paid by SGK and the wage that should be paid for that period. Otherwise, termination of the employment contract by the employee for just cause and an administrative fine under Article 102 of the Labor Law may arise.
Wage deduction for employees working on an hourly/daily wage: The hourly/daily wage system means that the employee’s wage is calculated on an hourly or daily basis, and the wage is paid according to the hours/days worked.
Under the hourly/daily wage system, regardless of whether the employee has a valid excuse, there is no obligation to pay wages to the employee for periods during which the employee was absent[5].
Regardless of whether the employee’s wage is fixed or hourly/daily, the employer must record, in a written report and in the presence of witnesses, that the employee was absent from work without excuse. Otherwise, the employer may face difficulty proving the employee’s absenteeism[6].
Disciplinary Wage Deduction Sanction
The conditions for a disciplinary wage deduction sanction are regulated under Article 38 of the Labor Law. The relevant article provides that, except for reasons set out in a collective labor agreement or employment contract, the employer cannot impose a disciplinary wage deduction sanction on the employee; deductions to be made from the employee’s wages must be notified to the employee immediately together with their reasons; and deductions made in this manner may not exceed two days’ wages in one month, or, in wages paid on a piece-rate or according to the quantity of work performed, the employee’s earnings for two days. At this point, it is important to emphasize that the deducted amounts cannot be retained by the employer and must be deposited into an account of the Ministry of Labor and Social Security.
Pursuant to the relevant legal provision, doctrine, and court decisions, the conditions for applying a disciplinary wage deduction sanction are: (a) the existence of a legal basis (employment contract or collective labor agreement), (b) the sanction being limited to the purpose of ensuring workplace order and discipline, (c) the employee’s act being culpable, and (d) the sanction being compatible with the hierarchy of norms[7]. Namely:
Existence of a legal basis: Pursuant to Article 38 of the Labor Law, a disciplinary wage deduction sanction may be applied only for reasons set out in the employment contract or collective lobor agreement. The provision in Article 399 of the Turkish Code of Obligations No. 6098 stating that “The employer may make general regulations regarding the performance of work and the employees’ conduct at the workplace” also constitutes a legal basis for the employer to regulate workplace discipline through individual or collective labor agreements[8].
The sanction must be limited to the purpose of ensuring workplace order and discipline: A disciplinary wage deduction sanction is one of the disciplinary sanctions. The main purpose of disciplinary sanctions is to ensure order and peace in the workplace. Therefore, the employer’s authority to impose a valid disciplinary sanction on the employee depends on the sanction being limited to its own purpose[9].
The employee’s act must be culpable: Another condition for imposing a disciplinary wage deduction sanction on employees is that the employee be at fault. For example, employees’ absences due to medical reports issued by specialist doctors in their field cannot constitute a basis for a wage deduction. In addition, the disciplinary sanction to be imposed on the employee must also be proportionate to the employee‘s fault[10]. For instance, making a deduction at the statutory upper limit from an employee who is only 15 minutes late to work would be contrary to the principle of proportionality.
The sanction must comply with the hierarchy of norms: Article 38 of the Labor Law provides that deductions may not exceed two days’ wages in one month, or, for wages paid on a piece-rate or according to the quantity of work performed, the employee’s earnings for two days; therefore, not only is it impossible to make a wage deduction above the upper limit set by the article, but any contractual provision to the contrary will also be invalid.
Whether the employee’s defense must be obtained: Our law does not prescribe a special procedure for the imposition of disciplinary sanctions. Therefore, obtaining the employee’s defense before making a wage deduction due to absenteeism is not a legal requirement[11]. On the other hand, obtaining the employee’s defense may be useful in proving both the employee’s fault and the occurrence of the absenteeism, and since, in employment relationships subject to job security, obtaining the employee’s defense is mandatory before termination with notice based on the employee’s conduct, obtaining a defense may also be useful in cases of absenteeism.
Conclusion
Depending on the wage structure of the absent employee and whether the employee has a justified excuse, it is possible to resort to deduction from wages. In addition, if the conditions set out in Article 38 of the Labor Law are met, it may also be possible to impose a disciplinary wage deduction sanction on an employee who is absent.
However, in addition to lawsuits that employees may file due to unlawful wage deductions and disciplinary wage deduction sanctions, it is also highly likely that significant administrative fines may be imposed under Article 102 of the Labor Law and under Law No. 5510 due to underpayment of social security premiums. Therefore, in order to prevent difficult-to-remedy financial losses, it is strongly recommended that expert legal advice be sought during this process.
The content of this article does not constitute a legal opinion. Demircioğlu Koçak Bayraktar Attorney Partnership shall under no circumstance be held responsible for the content hereof. It is recommended for the readers to contact our team for detailed information and professional support regarding the content of this article.
[1] This Note does not examine the employer’s right to terminate for just cause due to the employee’s absenteeism.
[2] Supreme Court of Appeals (Yargıtay), 9th Civil Chamber, E. 2017/5650, K. 2017/13891, Date: 21.09.2017.
[3] GÜNEŞ Başak, MUTLAY Faruk Barış, Yargıtay Kararları Doğrultusunda 4857 Sayılı İş Kanunu’nda Hafta Tatili Ücreti, Dicle Üniversitesi Hukuk Fakültesi Dergisi, Vol. 29, No. 51, December 2024, pp. 765-57. Employer Implementation Communique No. 28398, Art. 2.1.2.2/a: The number of contribution days of insured persons whose work during the month/period is complete shall be entered into the system as 30 days, regardless of how many days the month/period has (without regard to whether the month/period has 28, 29, 30 or 31 days).
[4] Article 46 of the Labor Law reads as follows: “In workplaces falling within the scope of this Law, employees shall be granted, within a seven-day period, at least twenty-four consecutive hours of rest (weekly rest day), provided that they have worked on the working days determined pursuant to Article 63 before the holiday day (…).”
[5] On this point, see Konya Regional Administrative Court, 4th Administrative Litigation Chamber, E. 2018/1221, K. 2019/447, Date: 04.04.2019.
[6] For the view that, where absenteeism is documented by the employer through a report, the burden of proving that the employee did not absent himself/herself from work rests on the employee, see Yargıtay, 22nd Civil Chamber, E. 2014/4505, K. 2015/15793, Date: 30.04.2015.
[7] BAŞTERZİ Süleyman, İş İlişkisinin Kurulması, Hükümleri ve İşin Düzenlenmesi, Yargıtay’ın İş Hukuku ve Sosyal Güvenlik Hukuku Kararlarının Değerlendirilmesi Semineri 2018, 2021, pp. 113-117.
[8] BAŞTERZİ, ibid., p. 115.
[9] ÖZTÜRK Berna, İşçinin Talimatlara Uyma Borcu, On İki Levha Yayıncılık, 2021, p. 622.
[10] ÖZTÜRK, ibid., p. 621.
[11] SÜZEK Sarper, İş Hukukunda Disiplin Cezaları, Çalışma ve Toplum Dergisi, 2011, p. 13.