INFORMATION ABOUT WORKPLACE PRACTICES
Employees and employers may determine their labour relations within the limits of the legislation. Within the scope of the employment relationship, it is essential to apply the relevant legislation and to protect the balance of rights and responsibilities between the employee and the employer. However, there are some practices that, even if they are not regulated in the legislation, collective or individual employment contracts, are within the scope of the actual behaviours that the employer applies and repeats by using the authority to manage within the framework of responsibility, and these are called workplace practices in the legal literature.
There is no legal provision stipulating that the repetition of an act repeatedly or several times is considered as a workplace practice. Although there is a general rule that a practice will be accepted as a workplace practice if it is done consistently for three years, it would be more appropriate to evaluate this practice on a concrete case basis before accepting the applied act as a workplace practice. In our country, the most common workplace practices include premiums and bonuses, additional social benefits such as lodging, clothing and fuel allowances, other financial benefits and longer annual paid leave periods than stipulated in the law.
Workplace practices can be applied to all workers or only to workers working in a certain department or to the same class of workers with the same qualifications. The employer should treat its employees with the same qualifications equally, and unless there is a justifiable reason for discrimination for a workplace practice, the employer should apply it against the employees in a way that does not violate the obligation of equal treatment.
Although workplace practices do not have a place in the hierarchy of norms, they have an effective role in determining working conditions. In case of repetition of workplace practices, it may be understood that the workers have given tacit consent and this act may become a binding contractual provision. For this reason, employers should carefully select workplace practices.
Since workplace practices are implemented by the employer’s unilateral decision-making, it will cause a right of claim to arise for the employees. For this reason, even if the employer decides unilaterally and puts this practice into operation, it will not be able to eliminate it in the same way. The removal of the workplace practice, which has become a working condition, will mean a change in the working conditions of the employee.
Pursuant to Article 22 of the Labour Law No. 4857 (“Labour Law”) entitled “Change in working conditions and termination of the employment contract
“The employer may make a fundamental change in the working conditions arising from the employment contract or the personnel regulations and similar sources annexed to the employment contract or workplace practice only by notifying the employee in writing. Changes not made in accordance with this form and not accepted by the employee in writing within six working days shall not bind the employee. If the employee does not accept the change proposal within this period, the employer may terminate the employment contract by explaining in writing that the change is based on a valid reason or that there is another valid reason for termination and by complying with the notice period.”
If the employee does not accept the change proposal within six working days, the employer may terminate the employment contract by explaining the reason for this change in writing, giving severance pay, complying with the notice period or paying notice pay. For example, the employee is not obliged to accept the abolition of bonuses given at the workplace, and the contract between them can be terminated with the employee’s refusal.
Within the scope of workplace practices, the employer may have reserved the right to abandon the practice or to be free in practice. In such a case, the employer will not be obliged to fulfil this practice in the following years. Although the law does not stipulate a legal provision or form on how the employer reserves the right to waive or liberalise the practice, it is possible to interpret that a written form is foreseen by referring to Article 22 of the HR. In cases where the employer wants to protect itself from any dispute or justified termination of the employee, if an act that has become a workplace practice will not continue in the following years or if it is foreseen that this practice will have to be abandoned when the conditions occur, it will be useful to mention this issue in the content of the established employment contract.
In summary, it is recommended that companies be very careful about the workplace practices, the scope of which is explained above. Because in case of repetition of the existing practices, these practices will be evaluated within the scope of the personal rights of the employees and as a rule, if the companies do not want to continue the current situation, the employee will be notified and the written consent of the employee will be obtained within 6 working days, otherwise, the employment contract will have to be terminated by paying all rights to the employee.
Within the scope of the relevant subject, although Article 22 of the HR does not require a written consent in terms of validity, it is useful to mention this issue in our employment contracts as a condition of proof and employment contracts should be prepared by taking into account the aforementioned issues.
🏬 The importance of #workplace practices in increasing the performance and work motivation of employees and businesses with better working conditions is undeniable. Workplace practices that strengthen the relations between #employee and #employer should be meticulously prepared and implemented by employers.
👷🏻 Workplace practices, which have become a tradition in the enterprise and are removed with the change of conditions in the company order, have different consequences for employees and employers.
📝 By defining workplace practices, we present this information note, in which we have written the rights and responsibilities of employees and employers towards each other with legal bases, and remind you that you can follow our page to access all our publications.
