Introduction
This Information Note (the “Note”) aims to examine wage deductions and the disciplinary wage deduction sanction, two of the legal mechanisms that may be applied against an employee who is absent from work, under the Labour Law No. 4857 (the “Labour Law”).[1]
A. 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 an employee’s absence is to make a wage deduction for the periods during which the employee did not work. This mechanism is different from the disciplinary wage deduction sanction defined in Article 38 of the Labour Law.
a. Wage deduction for employees paid a fixed monthly wage
Under the fixed monthly wage model, the employee is paid a fixed monthly amount regardless of how many days the employee has worked in that month.
An employee working under the fixed monthly wage model who is absent without a valid excuse is not entitled to wages for the day of absence.[2] The employer may therefore apply a wage deduction in such cases. For employees paid a fixed wage, the daily wage is calculated by dividing the fixed monthly wage by thirty, regardless of the number of days in that month.[3] In addition, since an absent employee does not fulfil the condition of “having worked on the designated working days”,[4] the weekly rest day pay may also be withheld. It should be noted that it is advisable to draw up a separate absence record, in the presence of witnesses, for each day of absence without a valid excuse.
To illustrate the above, where an employee paid a fixed wage is absent for one day without a valid excuse, the missing days are calculated as follows:
- In months of 31 days, 29 days’ wages and social security (SGK) premiums are paid, the weekly rest day pay also being deducted.
- In months of 30 days, 28 days’ wages and SGK premiums are paid, the weekly rest day pay also being deducted.
- In February, which has 28 days, 28 days’ wages (27 + 1 day’s additional payment) and 27 days’ SGK premiums are paid.
Where the absence is on an hourly basis, no wage deduction may be made; otherwise, an underpayment of wages may arise. On the other hand, where an employee working under the fixed wage system arrives late or leaves early, the following methods may be applied:
- Upon the employee’s written request and with the employer’s consent, where the employee is granted leave of a few hours, the employee may subsequently perform compensatory work. The wages for these hours must be paid in full.
- The employee’s written defence regarding the hourly absence may be taken, following which a written warning may be issued.
Where an employee working under the fixed monthly wage model is absent with a valid excuse, employment legislation requires the employer to pay the employee’s wages for the first two days of the sick leave period; where a medical report is obtained for more than two days, the employee must be paid the difference between the temporary incapacity allowance paid by the SGK and the wages due for that period. Otherwise, the employee may terminate the employment contract for just cause, and an administrative fine may be imposed under Article 102 of the Labour Law.
b. Wage deduction for employees paid an hourly/daily wage
Under the hourly/daily wage system, the employee’s wage is calculated on an hourly or daily basis and paid according to the hours or days worked.
Under the hourly/daily wage system, there is no obligation to pay the employee wages for the periods of absence, regardless of whether the employee has a valid excuse.[5]
Irrespective of whether the employee’s wage is fixed or hourly/daily, the employer must record the employee’s unexcused absence in a written record drawn up in the presence of witnesses. Otherwise, the employer will have difficulty proving that the employee was absent.[6]
B. Disciplinary Wage Deduction Sanction
The conditions for the disciplinary wage deduction sanction are set out in Article 38 of the Labour Law. Under that article, the employer may not impose a wage deduction sanction on the employee for reasons other than those specified in the collective agreement or the employment contract; deductions from employees’ wages must be notified to the employee immediately, together with the reasons; and such deductions may not exceed two days’ wages in a month or, for wages paid per piece or according to the amount of work performed, two days’ earnings of the employee. It must be emphasised that the amounts deducted may not be retained by the employer and must be deposited into the account of the Ministry of Labour and Social Security.
In accordance with the relevant statutory provision, legal doctrine and case law, the conditions for applying the wage deduction sanction are (a) the existence of a legal basis (an employment contract or a collective labour agreement), (b) the sanction being limited to the purpose of maintaining workplace order and discipline, (c) the employee’s act being culpable, and (d) the sanction being consistent with the hierarchy of norms.[7] In particular:
a. Existence of a legal basis
Under Article 38 of the Labour Law, the wage deduction sanction may be applied only for the reasons specified in the employment contract or the collective labour agreement. The provision in Article 399 of the Turkish Code of Obligations No. 6098, which states that “The employer may make general arrangements concerning the performance of the work and the conduct of employees at the workplace”, also provides a legal basis for the employer to regulate workplace discipline through individual or collective employment agreements.[8]
b. The sanction being limited to the purpose of maintaining workplace order and discipline
The wage deduction sanction is one of the disciplinary sanctions. The fundamental purpose of disciplinary sanctions is to maintain order and peace in the workplace. Accordingly, the employer’s authority to impose a valid disciplinary sanction on the employee depends on the sanction being limited to its own purpose.[9]
c. The employee’s act being culpable
A further condition for imposing the disciplinary wage deduction sanction is that the employee is at fault. For example, absences due to medical reports obtained from specialist physicians cannot constitute a basis for a wage deduction. In addition, the disciplinary sanction imposed on the employee must be proportionate to the employee’s fault.[10] For example, making a deduction at the statutory upper limit from an employee who is only 15 minutes late for work would be contrary to the principle of proportionality.
d. The sanction being consistent with the hierarchy of norms
Article 38 of the Labour Law provides that the deduction may not exceed two days’ wages in a month or, for wages paid per piece or according to the amount of work performed, two days’ earnings of the employee. A wage deduction above the upper limit set out in the article is not possible, and a contrary provision in the employment contract would not be valid either.
e. Whether the employee’s defence must be obtained
Turkish law does not prescribe a specific procedure for the application of disciplinary sanctions. Accordingly, obtaining the employee’s defence before making a wage deduction for absence is not a legal requirement.[11] Nevertheless, obtaining the employee’s defence may be useful for proving that the employee was at fault and that the absence actually occurred; moreover, since in employment relationships subject to job security the employee’s defence must be obtained where the employer terminates the contract with notice on grounds of the employee’s conduct, obtaining the defence may also be useful in cases of absence.
C. Conclusion
Depending on the employee’s wage structure and on whether the employee has a valid excuse, a deduction may be made from the wages of an absent employee. In addition, where the conditions set out in Article 38 of the Labour Law are met, a disciplinary wage deduction sanction may also be imposed on the absent employee.
However, in addition to the lawsuits that employees may bring on account of unlawful wage deductions and wage deduction sanctions, it is highly likely that heavy administrative fines will be faced under Article 102 of the Labour Law and, on account of underpaid premiums, under Law No. 5510. It is therefore recommended that the opinion of a specialist lawyer be sought in this process in order to prevent financial losses that are difficult to remedy.
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] The employer’s right to terminate for just cause on account of the employee’s absence is not examined within the scope of this Note.
[2] Court of Cassation, 9th Civil Chamber, E. 2017/5650, K. 2017/13891, dated 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 Practice Communiqué No. 28398, Art. 2.1.2.2/a: The number of premium payment days of insured persons who have worked in full during the month/period shall be entered into the system as 30 days, regardless of the number of days in the month/period (irrespective of whether the month/period has 28, 29, 30 or 31 days).
[4] Article 46 of the Labour Law reads as follows: “In workplaces falling within the scope of this Law, employees shall be given an uninterrupted rest period of at least twenty-four hours (weekly rest day) within a seven-day period, provided that they have worked on the working days determined in accordance with Article 63 before the rest day (…)”.
[5] On this point, see Konya Regional Administrative Court, 4th Administrative Chamber, E. 2018/1221, K. 2019/447, dated 04.04.2019.
[6] On the burden being on the employee to prove that he or she was not absent where the employer has documented the absence in a written record, see Court of Cassation, 22nd Civil Chamber, E. 2014/4505, K. 2015/15793, dated 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, op. cit., p. 115.
[9] ÖZTÜRK Berna, İşçinin Talimatlara Uyma Borcu, On İki Levha Yayıncılık, 2021, p. 622.
[10] ÖZTÜRK, op. cit., p. 621.
[11] SÜZEK Sarper, İş Hukukunda Disiplin Cezaları, Çalışma ve Toplum Dergisi, 2011, p. 13.