Article 13/4 of the Labor Law No. 4857 has made a provision regarding part-time work by including the provision, “When there is a vacancy suitable for the qualifications of the employees working at the workplace, their requests to be transferred from part-time to full-time or from full-time to part-time are taken into consideration by the employer and the vacant positions are announced in a timely manner.” Thus, employees working full-time, even if partially, have the opportunity to switch to part-time work. However, it should be noted that this regulation does not have a compelling effect on the employer.
According to two new provisions added to Article 13 of the Labor Law by the Law on Amendments to Income Tax Law No. 6663, “After the end of the leaves stipulated in Article 74 of this law, one of the parents may request part-time work according to this article until the beginning of the month following the date of the start of compulsory primary school age. This request shall be met by the employer and shall not be considered a valid reason for termination. An employee who starts part-time work within the scope of this paragraph may return to full-time work without benefiting from this right again for the same child. If an employee who starts part-time work starts full-time work, the employment contract of the employee hired instead shall automatically terminate. An employee who wishes to benefit from this right or return to full-time work shall notify the employer in writing at least one month in advance. If one of the parents is not working, the working spouse cannot request part-time work. Those who adopt a child under the age of three, either together with their spouse or individually, shall also benefit from this right as of the date the child is actually delivered” (Labor Law Art. 13/5). ‘‘The sectors or jobs in which part-time work can be done within the scope of the fifth paragraph and the procedures and principles regarding the application are determined by the regulation to be issued by the Ministry of Labor and Social Security’’ (Labor Law, Article 13/6).
Following the provision in Article 13/6 of the Labor Law, which states that the issues related to transition to part-time work due to birth or adoption will be regulated by a regulation to be issued, the Regulation on Part-Time Work to be Performed After Maternity Leave or Unpaid Leave entered into force in the Official Gazette dated 08.10.2016.
The right to transition to part-time work in case of birth or adoption is not a right directly granted to the worker upon birth, but is a right that can only be used if the worker requests it. Article 13/5 of the Labor Law includes a regulation stating that the worker who wants to benefit from the right to transition to part-time work must notify the employer of this situation in writing at least one month in advance. In addition, Article 8 of the Part-Time Work Regulation states that “The worker may request part-time work at any time from the end of the maternity leave specified in Article 5, the unpaid leave specified in Article 6 or the unpaid leave specified in Article 7 until the beginning of the month following the date the child begins compulsory primary school. The request for part-time work may also be made by interrupting the unpaid leave period specified in Article 7. The condition of using the entire unpaid leave is not required. The request for part-time work shall be notified to the employer in writing by the worker at least one month before starting to benefit from this right.”
Both the Labor Law and the Part-Time Work Regulation state that the worker may switch to part-time work due to birth or adoption, but no regulation is included regarding the determination of the weekly working hours of the worker who switches to part-time work. According to Article 6 of the Working Hours Regulation regarding the Labor Law, ‘‘work performed up to two-thirds of the comparable work performed with a full-time employment contract at the workplace is considered part-time work. The worker who wishes to switch to part-time work due to birth or adoption may determine the weekly part-time work hours he/she will perform until this period as he/she wishes.’’
Article 9 of the Part-Time Work Regulation regulates the elements that must be included in the request to switch to part-time work. According to the provision, ‘‘The worker’s request for part-time work shall include the date he/she will start working part-time, the start and end hours of work if he/she will work on all working days, and the preferred working days if he/she will work on certain days of the week. The worker must attach a document indicating that his/her spouse is working to the part-time work request. The employee’s petition for part-time work is kept in the employee’s personnel file by the employer.”
Regarding the issue, the 31st Civil Chamber of the Istanbul Regional Court of Justice made the following evaluations in its decision dated 26.10.2022;[1]
(…)
‘‘All rights and obligations arising from the employment relationship and subject to the performance of the job should be considered as “working conditions”.
The regulation in Article 22 of Law No. 4857, “The employer can only make a fundamental change in the working conditions established by the employment contract or the personnel regulation and similar sources annexed to the employment contract or workplace practice by notifying the employee in writing. Changes that are not made in accordance with this form and are not accepted in writing by the employee within six working days do 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 notification period. In this case, the employee may file a lawsuit in accordance with the provisions of Articles 17 to 21” constitutes the legal basis for the change in working conditions.
The text of the article clearly states that the employer can make a fundamental change in the working conditions created by the workplace practice by informing the employee in writing, and that changes that are not made in accordance with this form and are not accepted by the employee in writing within six working days will not bind the employee. The main purpose of the first paragraph of Article 22 of Law No. 4857 is to protect the employee against unilateral changes by the employer; to prevent employer behaviors that will change the job, workplace and other working conditions against the employee’s will. On the other hand, Article 62 of Law No. 4857 states that no deduction can be made from the employee’s wages in any way due to the legal reduction of the working hours applied in any kind of work to lower limits or the fulfillment of a legal obligation incumbent on the employer or based on the implementation of any of the provisions of this Law. The prohibition on no deductions from wages regulated in Article 62 of Law No. 4857 is related to the employer’s inability to make unilateral deductions. The parties may make a reduction in the wage by mutual agreement and on the condition that it does not fall below the minimum wage at any time in the future. Because the economic conditions of the workplace may make this necessary and the worker may accept this in order not to become unemployed. The most important working conditions are the essential elements of the employment contract, the worker’s obligation to work and the employer’s obligation to pay wages in return. In addition, where and when the work will be done, the working hours at the workplace, the annual leave periods, the additional wages to be paid, the break, social benefits such as marriage, birth, education, food, disability and death benefits are also among the working conditions.
In order to talk about the change of working conditions, it is necessary to first determine what these conditions are. In addition to the aforementioned Article 22, the Constitution, laws, collective or individual labor contracts, personnel regulations and similar sources, as well as the entirety of employee and employer relations arising from workplace practices should be considered as working conditions.
If there are provisions in the employment contract that state that the employer can make changes to working conditions when necessary, the employer’s expanded right to manage is mentioned. In this case, the employer has permanently gained the right to make changes to the employee’s working conditions, provided that he does not abuse his right to manage and complies with the limits in the contract. The aforementioned right should be used objectively. Implementing a contract provision to ensure the termination of the employee’s employment contract constitutes an abuse of the employer’s right to manage.
Changes that fall within the scope of the employer’s right to manage or are based on valid reasons cannot be considered as fundamental changes in working conditions.
According to Article 67 of the Labor Law; “The starting and ending hours of daily work and the break hours are announced to the employees at the workplaces. The starting and ending hours of work may be arranged differently for the employees depending on the nature of the job.” It is accepted by the doctrine and the Court of Cassation that the employer can determine the employee’s working hours, in other words, the start and end time of the job, based on the employer’s right to manage. The only exception is that the employer’s instructions and changes regarding working hours do not aggravate the employee’s working conditions. Otherwise, it may require compliance with the regulations in Article 22 of the Labor Law, and may also result in the termination of the employee’s employment contract in accordance with Article 24/II-f of the Labor Law. In the termination notice in question; “In Article 12 (ç) of the Regulation on Part-Time Work to be Performed After Maternity Leave or Unpaid Leave; part-time work can be done “in jobs that are not suitable for dividing the work period into working days of the week, if the employer deems it appropriate”, and in Article 15/1; “The time interval in which part-time work will be performed within the determined daily and weekly working hours is determined by the employer, taking into account the traditions of that place, the nature of the work the employee is doing and the employee’s request.”
Although your request for part-time work has not yet been approved by the Bank in accordance with the relevant regulation provisions, it has been understood that you have come to your job part-time without permission and that you have not complied with the working hours determined by the Bank and notified to you.
For the reasons stated above, with the decisions of the Board of Directors and in accordance with Articles 17 and 18 of the Labor Law No. 4857, your employment contract with the Bank has been terminated by paying your legal compensation. We kindly request that you be informed.
The situation of workers who request part-time work is addressed in Article 13/5 of the Labor Law. According to the aforementioned article, one of the parents may request part-time work after the end of the leaves stipulated in Article 74 of the Labor Law titled Work and Nursing Leave during Maternity until the beginning of the month following the date of the start of compulsory primary school age. In the Regulation on Part-Time Work to be Performed After Maternity Leave or Unpaid Leave issued based on this provision, “the time interval in which part-time work will be performed within the determined daily and weekly working hours is determined by the employer, taking into account the traditions of that place, the nature of the work the worker is doing and the worker’s request.” (Article 15/1). Therefore, the employer is authorized to determine the working days and hours of the worker applying for part-time work within the framework of the management right. In the specific dispute, the plaintiff worker stated in his petition requesting part-time work that he wanted to work between 09:00-18:00 on Mondays, Tuesdays and Wednesdays, including 18/10/2021, and the defendant employer was informed by e-mail dated 12/10/2021 that he could work part-time between 14:00-18:00 on all actual working days of the week starting from 15/10/2021, and it was stated that if he wanted to work in this way, it would be sufficient to fill out and send the attached form, and if he did not accept, he should notify within 3 days, but the plaintiff remained silent, and although his part-time work request had not yet been accepted, it was observed that a report was drawn up stating that he did not come to work on 21.10.2021 and 22.10.2022.
The determination of the working order in the workplace falls within the scope of the employer’s management right. The employee’s part-time work request was accepted by the employer on different days and hours. While it should have been decided to reject the case by accepting that the termination made by the employer was based on valid reason due to the employee’s failure to comply with the determination of the working order, which is within the scope of the employer’s management right, without a justified and valid reason, the first instance court found it wrong to give a written decision.’’
[1] Istanbul Regional Court of Justice, 31st Civil Chamber, Decision Dated 26.10.2022.; Asiye Şahin Emir, ‘‘İşverenin Yönetim Hakkı Kapsamında Çocuk Sahibi Olan Ebeveynin Kısmi Süreli Çalışmaya Geçiş Hakkı
– İstanbul BAM 31. Hukuk Dairesi’nin 26.10.2022 Tarihli Kararı Çerçevesinde Bir Değerlendirme,’’ Marmara Üniversitesi Hukuk Fakültesi Hukuk Araştırmaları Dergisi, Cilt 30, Sayı 2, 2024.