FREQUENTLY ASKED QUESTIONS WITHIN THE SCOPE OF EYT REGULATION
The Law on the Amendment of the Social Security and General Health Insurance Law and the Decree No. 375 (“Law”), which is known as the EYT regulation in the public opinion, entered into force after being published in the Official Gazette dated 03.03.2023 and numbered 32121. With this regulation, which concerns approximately 2 million people, the age requirement for the retirement of workers who were insured before 08.09.1999 has been abolished.
The amendment to the Law has caused many workers to apply to their employers with the request to retire, and therefore, it is very busy on the agenda of employers. In this study, as GRC LEGAL, we will try to answer some of the questions that are very busy on the agenda within the scope of the Law amendment.
1. What are the Responsibilities of the EYT Regulation for Employers?
Employers are required to follow the normal pension procedures in the dismissal procedures of their employees within the scope of EYT, and the dismissal notifications of the insured within this scope are required to be sent to the “8” [Due to retirement (old age) or lump sum payment] code must be selected. As a result of the retirement of the employee, if the conditions for the employee to receive severance pay are met, the employer is obliged to pay severance pay to the employee.
As a rule, the severance payment is in the amount of the last gross wage for 30 days for each full year of employment from the date of commencement of employment, and there is also a ceiling limit on the calculation of severance pay. This limit is determined by the Ministry of Treasury and Finance twice a year, “January-June” and “July-December” of each year. For the 2023 January-June period, this amount is 19 thousand 982 TL. In this context, when calculating severance pay, this ceiling limit will be taken into account even if the gross wage of the workers is above 19 thousand 982 TL. In addition to severance pay, all labour receivables existing as of the date of departure must be paid in full to the employee who leaves the job due to retirement. In addition, employers may pay such compensation in instalments with the written consent of the employee who is entitled to compensation due to retirement.
2. Is it Mandatory for the Employee to Obtain a Retirement Letter from the SSI in order to Retire within the Scope of EYT?
As a rule, employers request a “retirement eligibility” letter in order to determine whether the employees working within their employers are entitled to this situation in their requests to leave work due to retirement. However, considering the intensity that will be experienced as a result of the EYT regulation, the SSI has published a statement that the relevant letter can also be obtained on e-Government. In the relevant statement published by the Institution, “SGK Registration and Service Breakdown”, “Social Security Registration Document” and “My Working Life”, which are among the services offered by our Institution on the e-Government platform, as well as “When Will I Retire” applications on the website www.sgk.gov.tr, the conditions that the insured must fulfil in order to qualify for a pension, whether they have fulfilled these conditions and on what date they will fulfil them, and the insured registration and service information are included.
For this reason, employers should not direct the insured to our Institution in order to obtain the documents in question, arrange the termination notifications based on the information and documents to be provided via e-Government, and request an official letter from our Institution only for the insured who have doubts in their services.” The statements are included. 1
3. Can Employers Re-Employ a Worker Who Terminated His/her Employment Contract to Retire?
The employee is deemed to have terminated his/her employment contract when he/she submits the document stating that he/she meets the conditions for terminating the employment relationship due to retirement to the employer with the will to terminate after receiving the document from e-Devlet. The employer is not obliged to continue to employ the employee in the same job after this notification, but may continue to work if he/she wishes. If the employee wishes to continue working in the same workplace and the employer agrees to this, the employment relationship between the parties may continue. In this case, the employee can continue to be employed continuously by making a notification subject to social security support premium again after the employee’s termination notification is made with code 8. The employer is required to notify the Social Security Institution (“SSI”) within 10 days following the termination of the employment contract.
As a rule, the employer’s burden increases in the premiums paid for workers who work after retirement, and while the premium rate of the employee decreases, the rate of the premium paid by the employer increases. However, within the scope of the Law published on 3 March 2023, some arrangements have been made to eliminate this burden of the employer. According to this regulation; In the event that those who are given a notice of resignation from work due to old age or pension request start working subject to social security support premium in the last private sector workplace within 30 days following the date of resignation from work, the amount corresponding to the five-point portion of the employer’s share of the social security support premium from the date of starting to work subject to social security support premium is covered by the Treasury. Thus, the premium difference between the workers who will continue to work in their last workplaces after retirement and other workers is eliminated.
4. What will be the fate of the severance pay and other rights of the employee who terminates his/her employment contract due to retirement?
In the event that the employee, who receives severance pay and leaves the employer due to retirement, starts working in the same workplace again, a new working period will be deemed to have started. In other words, a new employment contract has been established between the parties and a new period will be deemed to have started and the rights and receivables related to the old working period will not be valid in this relationship.
In the decision of the 9th Civil Chamber of the Court of Cassation dated 23.02.2022, it is understood that the plaintiff worked in the defendant workplace in two periods between 12.05.2007 – 31.12.2012 and 01.01.2013 – 24.08.2014, the first period of work ended on 31.12.2012 due to retirement and the plaintiff was paid severance pay. In the expert report taken as the basis of the judgement, calculations were made by deducting the amount paid without liquidating the first period work on the grounds that the plaintiff continued to work without interruption. In terms of the plaintiff’s first period of work, it is understood that the plaintiff left the work on 31.12.2012 due to retirement and the severance pay was paid to the plaintiff. Accordingly, while it should be concluded by accepting that the plaintiff’s first period of work was liquidated by paying severance pay, it was erroneous to make a decision in writing and required a reversal.” and decided that severance pay cannot be paid more than once for the same seniority period.
Regarding the right to annual leave in the event that the employee whose employment contract is terminated due to retirement starts to work again within the same employer, Süzek2 states that the working periods of the retired employee who continues to work in the same workplace before retirement should also be taken into consideration in the calculation of annual paid leave; Demir and Çelik/Caniklioğlu/Canbolat3, on the other hand, with a case law referred by the Court of Cassation, accepted that “if the retired employee continues to work, this work will not give rise to the right to annual leave, since this work is based on a new employment contract and has not completed one year”.
In its recent decisions, the Court of Cassation, although it is of the opinion that, as a rule, intermittent work for the same employer will be taken into consideration in terms of annual leave entitlement, it has subjected the application of this rule to certain conditions that are not stipulated in the law. While the Court of Cassation initially accepted that the periods worked for the same employer can be combined only if the severance pay for this period has not been paid, the Court of Cassation later changed its jurisprudence and accepted that the payment of severance pay will not prevent the combination. However, this time, it has accepted that the rule stipulated in the law will not be applied and the periods will not be combined if the leaves were used during the previous working period or paid when the employment contract was terminated.
In its recent decision dated 3.2.2020, 22nd HD of the Court of Cassation, E. 2017/27244 K. 2020/1374 T. 3.2.2020, “However, if the employee has been paid in full for the unused leave due to the previous termination, it is not possible to calculate leave by adding this period to the subsequent working periods. However, the working periods that were not liquidated by using leave in the previous working period or by paying for it at the termination shall be added to the work in one or different workplaces of the same employer. In the event that the employee works intermittently in the workplaces of the same employer, the termination of the previous period by paying severance pay does not constitute an obstacle to the consolidation of the periods in terms of leave. Again, the remaining periods that are not entitled to leave because they have not completed one year in the previous period of employment are added to the employee’s subsequent work in the workplace or workplaces of the same employer and the annual leave right is determined. Annual leave is essentially a right to rest, and the previous period is not subject to statute of limitations in intermittent work.”
The 9th Civil Chamber of the Court of Cassation, in its decision dated 09.02.2021 and numbered 2020/2236 E., 2021/3668 K., also ruled as follows: “In this case, the employee’s previous services in one or different workplaces of the same employer should be taken into consideration in terms of entitlement to annual leave and calculation of leave periods. However, if the employee has been paid in full for the unused leave due to the previous termination, it is not possible to calculate leave by adding this period to the subsequent working periods. The working periods that are not liquidated by using leave in the previous working period or paying for it at the time of termination are added to the working periods in one or different workplaces of the same employer.
In the event that the employee works intermittently in the workplaces of the same employer, the termination of the previous period by paying severance pay does not constitute an obstacle to the consolidation of the periods in terms of leave.”
Although we state that the issue is controversial in the Supreme Court decisions and the doctrine, we agree with the opinion of Çelik/Caniklioğlu/Canbolat that the working periods of the employee who retired and continued to work in the same workplace before retirement should not be taken into consideration in the calculation of annual paid leave.
