Employment Law PDF

SECTION IV Obligations Arising From the Contract of Employment Contract of employment imposes obligations to the parties of the contract. The main obligations arising from contract of employment are employee’s duty to work and employer’s duty to pay wages. However, there are also other obligations...

SECTION IV Obligations Arising From the Contract of Employment Contract of employment imposes obligations to the parties of the contract. The main obligations arising from contract of employment are employee’s duty to work and employer’s duty to pay wages. However, there are also other obligations of employees and employers arising from employment contract. I. OBLIGATIONS OF EMPLOYEES A. Duty to Work (İş Görme Borcu) As it is understood from the definition of employment contract regulated in the Article 8 of LC(83) the main contractual obligation of employees in an employment relationship is to perform his/her work. Moreover, it is expected from the employee to perform his/her duties with diligence and proper care. Fulfilling the duty to work forms the basis for employees to claim wage from the employer. It is expected from employee to perform his/her work in person unless the otherwise is understood from the contract or from the circumstances (Art. 395 of TCO). In this regard, the employee is not obliged to provide a substitute in a case that s/he cannot perform his/her work in person. This is the result of employment contract creating a personal relationship. Likewise, the employer cannot transfer the duty to work of the employee to another employer without the consent of the employee(84). Parties of the employment contract may define the work of the employee explicitly. In such a case the employer shall assign the employee only to the defined work. However, if the work is described very generally (e.g. unqualified worker), employer may assign the employee to any work that is related to the description of the work. Sometimes employees may fail to fulfil their duty to work. In such cases, the employee will not be remunerated with wage unless the otherwise stipulated in Codes, the employment contract between the parties or collective labour agreement enacted in the workplace. Moreover, the employer may terminate the contract of employment with just cause if the employee is absent from work for two consecutive days, or twice in one month on the working days following a rest day or on three working days in any month without the permission of the employer or a valid reason. Besides, if the employee insists on refusing to perform his/her duties, although the duties are reminded to him/her, the employer also may terminate the contract of employment with just cause (Art. 25/2-(h) LC). As it was stated above, it is expected from the employee to perform his/her duties with diligence and proper care (Art. 396 of TCO). Failure of employee performing his/her duties with diligence and proper care may too result in the termination of the employment contract by the employer with just cause. According to the Article 25/II-(ı) of LC, the employer may terminate the contract of employment with just cause if the employee imperils the work safety or when an employee impairs machineries, facilities, objects or materials, which belong to the workplace or which are in the employee’s care although they do not belong to the workplace, and the damage cannot be compensated by an amount of money corresponding to thirty days of his/her wage. B. Duty to Follow the Instructions (Talimatlara Uyma Borcu) Employee’s duty to follow the instructions is the reflection of the employer’s right to give instructions and manage. Contract of employment is a contract where an employee agrees to work dependently; and the employer accepts to pay wages (Art. 8/1 of LC). Accordingly, one of the three elements of the employment contract is the employee’s subordination to the employer that contains duty to follow the instructions. On the other hand, employees’ duty to follow the instructions is also stipulated in the Turkish Code of Obligations. Accordingly, employers can make general arrangements on the performance of the work and behaviours of the employees at the workplace and give instructions to them. The employees are obliged to comply with the arrangements and follow the instructions as long as they are not against the principle of good faith (Art. 399 of TCO). The employer can give two kinds of instructions within the scope of the right to give instructions and manage: Instructions for the execution of work in the workplace and instructions on the behaviours of the employees in the workplace(85). The duty of the employee to follow the instructions given for the execution of the work in the workplace may not be considered as an independent debt, but a part of the employees duty to work since it is related to the performance of work. On the other hand, the employer’s instructions on the behaviours of the employees in the workplace do not fall within the scope of the employee’s duty to work but duty to follow the instructions(86). It is expected from employees to follow the lawful and reasonable instructions of the employer. If the employee does not follow the instructions on the behaviours of the employees in the workplace, s/he may face a termination of the employment contract. As it was mentioned above, the employer may terminate the contract of employment with just cause in accordance with the Article 25/2-(h) of LC, if the employee insists on refusing to perform his/her duties, although the duties are reminded to him/her. However, if the instruction of the employer is not lawful or reasonable, the employee may refuse to follow them. C. Duty of Loyalty (Sadakat Borcu) Duty of loyalty cannot be inferred from the definition of the employment contract. However, it is an obligation of the employer due to the fact that employment contract establishes a personal relationship between the parties(87). In general, employee’s duty of loyalty is to behave for the benefit of the employer and to avoid behaviours that would harm him/her (Art. 396 of TCO). In accordance with the duty of loyalty, it is expected from employees to inform the employer in case of a shoplifting as an example of a behaviour for the benefit of the employer. On the other hand, employees cannot disclose the confidential information of employer acquired while employed or compete with the employer while the employment contract is in progress. Failure of fulfilling the duty of loyalty may result in the termination of employment contract by the employer with just cause. Commitment of a dishonest act by the employee against the employer, such as breach of trust, theft or disclosure of the employer’s confidential information constitutes a just cause for employer to terminate the contract (Art. 25/II-(e) of LC). It is necessary to note that employees cannot compete with the employer while the employment contract is in progress. However, there is no limitation that prevent employee to compete with the employer after the employment contract come to an end unless there is a non-compete agreement concluded between the parties. On the other hand, to protect the rightful interests of the employer, the employee is obliged not to disclose the confidential information even after the termination of the employment relationship (Art. 396/4 of TCO). D. Non-Compete Agreement (Rekabet Yasağı Sözleşmesi) In order for employer to expect employee not to compete with him/her after the employment contract come to an end, there must be either a non-compete provision within the employment contract or a separate non-compete agreement concluded between the parties(88). Non-compete agreement is stipulated under the Article 444 of TCO. Accordingly, an employee with legal capacity may undertake in written form to avoid any competition with the employer in any way after the termination of the contract, in particular by establishing a rival business in his/her own account, or working in another competitor business or attempting another kind of benefit relationship with the competitor. Employees may harm the employers’ rightful interests by using of some information, which are received during the employment relationship, after the termination of the contract. On the other hand, freedom of labour and freedom of contract are protected under the article 48 of the Constitution of the Republic of Turkey. In this case, it is necessary to balance the rightful interests of the employers and freedom of labour and contract of employees(89). Article 444 and 445 of TCO stipulates the conditions of making a non-compete agreement, aiming to balance the interests of employers and freedoms of employees. First of all, the non-compete agreement shall be concluded in written form and the employee shall have the legal capacity to conclude the contract. If these conditions are not met, then the agreement will be considered as invalid (Art. 444/1 of TCO). Secondly, the employer must have a rightful interest that worth preserving. In order to fulfil this condition the employee must have the opportunity to acquire information about the production secrets, business of the employer or customers of the employer; and there must be a possibility of employer to suffer a significant damage (Art. 444/2 of TCO). For example, a non-compete agreement concluded between an employer and an unqualified worker, who does not have any opportunity to acquire mentioned information, will not be considered as a valid agreement. Thirdly, a non-compete agreement shall not endanger the economic future of the employee. It is stipulated in the TCO that a non-compete agreement cannot contain provisions that are inappropriate in regards of the area and the types of works that the employee will be prohibited to compete (Art. 445/1 of TCO). For example, a non-compete agreement cannot prevent employee to work in an area, which is not the activity area of the employer; or to do a type of job which is not related to the job that s/he was performing at the workplace of the contracting party(90). On the other hand, a non-compete agreement cannot be longer than two years with the exceptions for special cases and conditions. So that, even if the parties conclude a non-compete agreement for more than two years, the agreement will be considered as valid only up to two years. The judge may limit the excessive prohibition of competition in terms of its scope or duration, by freely assessing all circumstances and conditions and by taking fair consideration of the substitute performance(91) to which the employer may have undertaken (Art. 445/2 of TCO). Employees, who act contrary to the prohibition of competition, are obliged to compensate all the losses suffered by the employer as the result of this action. If the breach of the prohibition is subject to a penal clause and there is no provision on the contrary, the employee may be relieved of his obligation not to compete with the employer by paying the prescribed amount in the penal clause. However, the employer must compensate the damage exceeding the amount prescribed in the penal clause. (Art. 446 of TCO). The parties of the non-compete agreement may set the amount in the penal clause freely. However, the judge may reduce the amount in the penal clause if s/he finds it excessive (Art. 183 of TCO). A non-compete agreement may come to an end if the designated time is expired; if the employee passes away or if the parties mutually agree to terminate the contract. Besides these, the non-compete agreement will be deemed to be terminated when: There is no real benefit of employer in the continuance of the prohibition of competition (Art. 447/1 of TCO). The employer terminates the contract of employment without a just cause (Art. 447/2 of TCO). The employee terminates the contract of employment with a just cause (Art. 447/2 of TCO). II. OBLIGATIONS OF EMPLOYER A. Duty to Pay Wage (Ücret Ödeme Borcu) As it was mentioned before, duty to pay wage is the constituent element of employment contract and the fundamental obligation of employer(92). Article 32 of LC has the definition of wage. Accordingly, the wage is, in general terms, the amount of money to be paid in cash by an employer or by a third party to the employee in return for the work performed by him/her. As the wage is a constituent element of the employment contract, parties cannot agree on an employment contract which does not contain the employer’s duty to pay wage. Indeed, the employer has to pay the employee the wage specified in the contract or in the collective agreement. In cases where there is no provision in the contract regarding the amount of wage, the employer is still obliged to pay the equivalent wage which cannot be less than the minimum wage (Art. 401 of TCO). As a rule the wage shall be paid in Turkish Lira at the workplace or shall be deposited into the bank account of employee. If the wage has been decided in terms of a foreign currency, it may be paid in Turkish Lira according to the currency rate on the date of payment (Art. 32/2 of LC). Payment of the wage cannot be made to employees in bars and similar entertainment areas where alcoholic beverages are served as well as in retail stores. However, if the employees are working in such workplaces, the payment can be made in these places (Art. 32/6 of LC). It is important to note that statutory limitation on wage claims is five years (Art. 32/8 of LC). Hence, employers may raise an objection to the wage claims for the dates which are older than five years. 1. Forms of Remuneration a. Time Wages Time wages are the most common form of remuneration in Turkish practice. Wage of an employee can be paid regarding a time period that employee works, such as hour, day, week or month. In this type of wage, calculation of the wage will directly be related to the time that employee spent on working. The employee will be remunerated less, when s/he spends less time working at the workplace. On the other hand, the remuneration will rise when the time spent at working increases. Moreover, apart from the working times, the times that are regarded as worked will also be remunerated. For example, when an employee works for 6 days in a week, s/he will also be entitled to paid weekend. So that, the employer will have to make payment for the paid weekend too. It is necessary to make the distinction between monthly wage and fixed rate wage. In monthly wage, the wage of employee is paid as the result of the calculation of the days that the employee is worked or regarded as worked. So that the employee will not be remunerated if s/he is absent due to sickness or an excuse(93). b. Piece Rate Wage Piece rate wage is a form of wage that is based on the amount produced by the employee. The calculation of the wage may be based on the number, length or weight of the pieces produced by the employee(94). Piece rate wage has both advantages and disadvantages. With the help of piece rate wage, employees may be encouraged to produce and earn more. However, tempting the employee to overwork may harm his/her health or affect the quality of the products or services(95). If the employee undertakes to work with piece rate wage, the employer is obliged to inform the employee about the unit fee to be paid to him/her before the start of each work. The employer, who does not make this notification, is obliged to pay the unit fee determined for the same or similar job. In cases where wages have been fixed at a piece rate, if the employer assigns the employee fewer pieces or a smaller task than was stipulated and fails to compensate the deficit by assigning him extra work on another day, The employee is entitled to terminate the employment contract before it expires or without having to comply with the notice periods. c. Fixed Rate Wage Fixed rate wage is a type of wage which is fixed and does not change based on the time worked or the amount of pieces produced. In this type of wage, the amount of the wage is designated in the employment contract and the employer is obliged to pay the wage of employee as it is stated in the contract for each period of payment. For example, the income tax applied to the wage of employee may rise as the total income of the employee in a year exceeds certain levels. If the wage of the employee is calculated by time, the increase in the income tax that the employee is obliged to pay reduces the amount of the wage that the employee receives. However, in fixed rate wage, the amount of money that is ought to be paid to the employee is fixed. Hence, even if the income tax that the employee is obliged to pay increases, the employee shall still earn the same amount of money (fixed by the agreement) and the increase in the income tax will be paid by the employer. d. Premiums and Bonuses Premiums are wage supplements that are paid in remuneration for works that are successfully done in regards of quality or quantity. Premiums aim to encourage employees to work more successful and sufficient(96). Premiums may be stipulated in contracts of employment, collective labour agreements or an internal regulation of the workplace while it is also possible for employers to pay premiums unilaterally. It is important to note that continued practice of unilateral payments of premiums might become an employment condition. In such cases, the employees may claim their premiums when the employer does not make the payments(97). Bonuses are also wage supplements, which are paid to indicate the appreciation for the work of employees or the commitment between the employer and employees. On the other hand, they may be paid for special causes such as New Year, holidays, marriage, and birth of a child(98). As a general rule, employer is not legally bound to pay bonuses with the exception regulated under the Code numbered 6772. However, if it is stipulated in contracts of employment, collective labour agreements or internal regulations of the workplace, the employer is obliged to make the payment of bonuses. Bonuses may be paid for some periods such as once in a year. According to the Article 405/2 of TCO, if the contract of employment ends before the period in which the bonus was given, the portion of the bonus that reflects the worked period shall be paid by the employer. Hence, in such a case where the employee has worked for 9 months, the employer shall pay 3/4 of the total amount of the bonus on the date of the end of the contract. 2. Minimum Wage As a general rule, parties of a contract of employment are free to decide the amount of the wage that employer pay in return of the work of the employee. There is no legal limit on how high the amount can be decided. However, the parties cannot agree on a wage that is lower than the minimum wage(99). With the object of regulating the economic and social conditions of all employees working under a contract of employment, either covered or uncovered by LC, the minimum limits of wages shall be determined every two years at the latest by the Ministry of Family, Labour and Social Services through the Minimum Wage Fixing Commission. Decisions of the commission are final and decisions become effective upon their publication in the Official Journal (Art. 39 of LC). There is no difference of minimum wage between the provinces or regions in Turkey. The determined minimum wage applies all across the country. 3. Protection of Wage a. Protected Portion of Wage A portion of employees’ wage is protected against seizure, transfer and assignment. Regarding this, not more than one-fourth of the wage in a month may be seized, transferred or assigned to a third party (Art. 35 of LC). In the meantime, any maintenance allowances awarded by a judge to members of the employee’s family whom he is required to support shall not be included in this sum. The protection regulated under mentioned article does not cover the rights of persons entitled to alimony. In other words, persons who are entitled to alimony may seizure, transfer or assign the wage of employee without any limit. It is necessary to note that while premiums and bonuses are regarded as a part of the wage, severance pay or pay in lieu of notice is not. Hence, severance pay and pay in lieu of notice are not in the scope of the protection against seizure(100). b. Non-Payment of Wage Employers have duty to pay wages on time. However, employers may sometimes have difficulties to do it. In such cases, employees may use their rights stipulated in the provisions of LC: refrain from work and termination of the employment contract with just cause. The employee whose wage has not been paid within twenty days of the due day, with the exception of force majeure, may refrain from fulfilling his duty to work. Even if there are a number of employees who are refraining from work based on their personal decisions, and it takes on the character of a concerted action in quantifiable terms, it shall not qualify as a strike (Art. 34/1 of LC). Furthermore, employment contracts of these employees shall not be terminated solely because they have refrained from working for this reason. Employers cannot hire replacements or order others to perform the works that these employees refrained (Art. 34/2 of LC). The highest interest rate charged to bank deposits shall be levied on wage debts not paid on the day they were due (Art. 34/1 of LC). Apart from refraining from work, employees may also terminate their contract of employment with just cause without having to observe the specified notice periods in case of non-payment of wage. If the employer fails to make out a wages account or to pay wages in conformity with the LC and the terms of the employment contract, this constitutes a just cause for employee to terminate the contract (Art. 24/II-(e) of LC). The employee may use its right to terminate the contract of employment until his/her wage is completely paid. c. Forfeiture of Wage Pursuant to the Labour Code, employers are not allowed to impose a fine on an employee’s wage for reasons other than those indicated in the collective agreement or the employment contract. Besides, the employee must be notified with the reason of any wage deduction as a fine (Art. 38/1 of LC). The amount of deduction made as a fine is not limitless. Deduction imposed by employer must not exceed two days’ wage of the employee in one month. If the employee’s wage is paid according to the piecework or amount of work to be done, the deduction must not exceed the wage earned by the employee in two days (Art. 38/2 of LC). These deductions shall be credited within one month to the account of the Ministry of Family, Labour and Social Services, which is in a bank established in Turkey, and must be designated by the Ministry for the use in the training of and social services for employees. All employers must maintain a separate account in their workplaces showing such deductions. A committee, which is presided over by the Minister of Family, Labour and Social Services and includes employees’ representatives as members, shall decide where and in what amounts the fines collected are to be used (Art. 38/3 of LC). d. Wage Guarantee Fund (Ücret Garanti Fonu) Another protection of the wage of employees is the Wage Guarantee Fund, which covers some of the unpaid wages of employees under some specific conditions. According to the Additional Article 1 of Unemployment Insurance Code(101) a separate Wages Guarantee Fund is established within the Unemployment Insurance Fund and the Fund shall comprise one per cent of the total unemployment insurance contributions paid by employers. The Wages Guarantee Fund shall meet the employees’ wage claims for the last three months arising from the employment relationship in case of the employer’s inability to pay as evidenced by the declaration of a concord by him or the issuance of a certificate attesting to his insolvency or bankruptcy or suspension of bankruptcy. It is also necessary for employee to be working at the employer’s workplace in last one year before the employer’s inability to pay. e. Privileged Claim Character Wages and other rights of employees are regarded as privileged claims in the Article 206 of the Code of Enforcement and Bankruptcy(102). Pursuant to said provision, the claims of the employees, which have been risen in one year before the bankruptcy of the employer, are regarded as privileged claims and these claims are registered to the first place on the list of the claims. However, it is important to note that, claims secured with pledge and claims of the State (customs duty, taxes, etc.) are covered before the list of the claims. On the other hand, employees may claim their severance pay and pay in lieu of notice as privileged claim as long as they have risen in one year before the bankruptcy of the employer or they have risen because of the termination of the employment relationship due to the bankruptcy of the employer (Art. 206 of CEB). Apart from the bankruptcy of the employer, the same privileged character of the rights of the employee can be seen when the amount of money received from the sales cannot cover all the claims of the creditors. In such cases, a list of claims is created in accordance with the Article 206 of the CEB. Hence, the claims of employees shall be on the top of the list. f. Prohibition of the Reduction of Wage As a general rule, the parties may change working conditions anytime by mutual agreement(103). However, employers are not allowed to reduce the wage of employees by a unilateral decision (Art. 62 of LC). The wage of an employee constitutes an important part of the working conditions, which might have been regulated in the contract of employment, or personnel regulations which are annexed to the contract, or other similar sources or workplace practices. Any change by the employer in working conditions can be made only after a written notice is served by him/her to the employee (Art. 22 of LC). Changes that are not in conformity with this procedure or changes not accepted by the employee in written form within six working days shall not be binding for the employee. In some cases, employers may declare that s/he reduced the wage of employees unilaterally. As it mentioned above, the unilateral reduction of wage will not be binding for employees even if they do not oppose the reduction and keep working under the new conditions. However, the employees might have some difficulties on collecting the reduced part of the wage after five years since the statutory limitation on wage claims is five years. g. Obligation of Primary Employers to Deduct Wage Claims from Sub-Employer’s Entitlements It is stipulated in the LC that in cases where there is a sub-employment relationship, the primary employer is obliged to check whether the wages of the employees of sub-employer are paid (Art. 36/5 of LC). The primary employer may check the payments upon a request from an employee of sub-employer. On the other hand, the primary employer is obliged to make controls about the payments monthly. If there are unpaid wages of sub-employer’s employees, then the primary employer shall deduct the appropriate amount from the sub-employer’s progress payment and transfer the amount to the bank accounts of those employees. Primary employer and sub-employer are jointly liable for the unpaid wage claims of the employees of sub- employer (Art. 2/6 of LC). When primary employer performs his/her obligation to deduct wage claims from sub-employer’s entitlements, s/he will no longer be jointly liable for those claims since they are paid(104). So that, this obligation is also an opportunity for the primary employers. B. Duty of Equal Treatment (Eşit İşlem Borcu) 1. Basis of the Principle of Equal Treatment Basis of the principle of equal treatment in Turkey are the Constitution of the Republic of Turkey (“Constitution”), Code of Human Rights and Equality Institution of Turkey (“CHREIT”)(105) and the Labour Code. Article 10 of the Constitution, which is entitled as “equality before the law”, states that everyone is equal before the law without distinction as to language, race, colour, sex, political opinion, philosophical belief, religion and sect, or any such grounds. Although there is no explicit provision on equal treatment in general, it is accepted that the said article of the Constitution regulates not only prohibition of discrimination but also the principle of equal treatment(106). Another basis of the principle of equal treatment in Turkey is CHREIT. Human Rights and Equality Institution of Turkey established with the enactment of CHREIT in 2016. The main aims of this institution are to protect and develop human rights based on human dignity, to guarantee the right to equal treatment of persons, to fight effectively against torture and ill-treatment (Art. 1 of CHREIT). Article 3 of CHREIT regulates the principle of equal treatment and prohibition of discrimination in the similar manner with the Constitution. On the other hand, it is stipulated under the Article 6 of CHREIT that the employer shall not make discrimination on any of the work-related processes, including information on recruitment, application, selection criteria, employment requirements, and termination of work. Lastly, employer’s duty of equal treatment is regulated under the Article 5 of LC which is entitled as “principle of equal treatment”. The said Article can be examined in two parts: prohibition of discrimination and equal treatment. 2. Equal Treatment in Labour Code a. Prohibition of Discrimination The prohibition of discrimination is stipulated under the Article 5 of LC. Accordingly, no discrimination based on language, race, sex, political opinion, philosophical belief, religion and sex or similar reasons can be made in the employment relationships. Moreover, discrimination between the types of contracts is also prohibited. Unless there are essential reasons for differential treatment, the employer must not make any discrimination between a full-time and a part-time employee or an employee working under an employment contract with fixed term or indefinite term (Art. 5/2 of LC). Gender and maternity are other prohibited reasons for discrimination. Except for biological reasons or reasons related to the nature of the job, the employer shall not make any discrimination, either directly or indirectly, against an employee in concluding the contract, establishing the conditions, implementing and terminating his/her contract due to employee’s gender or maternity (Art. 5/3 of LC). Furthermore, differential remuneration for similar jobs or for work of equal value is not permissible and application of special protective provisions due to the employee’s gender shall not justify paying him/her a lower wage (Art. 5/4 and 5/5 of LC). The consequences of the violation of mentioned prohibitions by employers are also stipulated in the sixth paragraph of the same article. Accordingly, if the employer violates the prohibitions in the execution or termination of the employment relationship, the employee can demand an indemnity up to his/her four months’ wages and the rights that s/he has been deprived of. It is important to emphasise that the Article 25(107) of the Code of Trade Unions and Collective Labour Agreements(108) which regulates the “guarantee of freedom of trade union”, is reserved (Art. 5/6 of LC). Hence, employees cannot claim union compensation and compensation for discrimination at the same time. On the other hand, employees may terminate the contract of employment with just cause in case of the violation of the prohibition of discrimination. Although the violation of the prohibition of discrimination is not explicitly stipulated in Article 24 of LC, one of the three main titles of the reasons for rightful termination is “situations and such that do not comply with the rules of morality and goodwill”. So that, other situations than the ones listed under the Article 24/II of LC can be accepted as just causes as long as they do not comply with the rules of morality and goodwill. b. Principle of Equal Treatment The Article 5 of LC should also be examined on the basis of the principle of equal treatment. As it can be understood, the Article 5 mainly regulates the prohibition of discrimination. Although there is no explicit statement on the principle of equal treatment, it is accepted by both doctrine and jurisdiction that employers have the duty of equal treatment(109). In consequence of the principle of equal treatment, it is expecting from employers to treat equally to employees who are working at the same workplace, working at the same time period and subject to a collective implementation. Employers cannot treat all of their employees in complete equality. Duty of equal treatment applies to the employees who are working under the same or similar conditions. Hence, employers may implement different working conditions to different employees due to the fact that there are objective reasons(110). In case of a violation of duty of equal treatment, employees can demand the rights that s/he has been deprived of. For instance, if an employer raises the wage of all employees except one, who is working under the same conditions with others, the employee, whose wage was not raised, can file a legal action against the employer to receive the amount of money that s/he has been deprived of. C. Duty of Care (Gözetme Borcu) Employer’s duty of care is the reflection of employee’s duty of loyalty. Since the employment contract establishes a personal relationship between the parties, the employer shall protect and supervise the employees while employees behave for the benefit of the employer and to avoid behaviours that would harm him/her(111). Employer’s duty of care is a comprehensive duty and it is not possible to indicate the scope of it. It can generally be said that protection of the personality of the employee, and taking necessary measures regarding occupational health and safety are accepted as the parts of duty of care. 1. Protection of Personality The provision that directly aims to protect the personality of employees takes place under the Article 417 of TCO. Accordingly, in an employment relationship, the employer shall protect and respect the personality of the employee and organize the workplace in accordance with the principle of good faith; and especially take necessary measures to prevent employees to face psychological and sexual abuses and to get more damage if one is faced such abuses. So that, the employee will have a comfortable and peaceful environment to work. a. Protection against Abuses Abuse is defined in the CHREIT as any act of intimidation, degrading, humiliating or embarrassing behaviour that is intended to violate human dignity or give rise to such a result including psychological and sexual types (Art. 2/(j) of CHREIT). The source of psychological or sexual abuse is not important. It may be the employer, other employees or someone outside of the workplace. In any case, the employer is under the duty to prevent the abuse or to prevent the employee to get more damage if the abuse has already been occurred. Failure of fulfilling the duty of care may give a rise to employee’s right to terminate the contract with just cause. It is stipulated that the employee may terminate the contract if an employer speaks or acts in a manner which constitutes an offence against the honour or reputation of the employee or a member of the employee’s family or when the employee experiences a sexual harassment (Art. 24/II-(b) of LC); or if an employee is sexually harassed in the workplace by another employee or a third person, and the employer does not take adequate measures to prevent the recurrence of such incidents, although s/he was informed of such incident (Art. 24/II-(d) of LC). Termination of the employment contract by employee with just cause entitles employees to severance pay. On the other hand, the employee may demand indemnity regarding his/her material or moral damages. b. Protection of Personal Data Protection of the personal data of the employees is also one of the aims of the employer’s duty to care. Personal data of an employee is considered as a part of the right of privacy. Privacy of private life is regulated under the article 20 of the Constitution. Accordingly, everyone has the right to demand respect for his/her private and family life; and right to request the protection of his/her personal data. This right includes being informed of, having access to and requesting the correction and deletion of his/her personal data, and to be informed whether these are used in consistency with envisaged objectives. Personal data can be processed only in cases envisaged by law or by the person’s explicit consent. The principles and procedures regarding the protection of personal data are laid down in the Code on Protection of Personal Data(112) numbered 6698. According to the Article 3 of CPPD, personal data is defined as any information relating to an identified or identifiable person and processing of personal data is strictly regulated under this Code. Any process performed upon personal data such as collecting, recording, storing, preserving, changing, adapting, disclosure, transfer, retrieval, making available for collection, categorizing or blocking its use in a form which is a part of a filing system is regarded as processing of personal data (Art. 3/e of CPPD). Processing of personal data may occur in employment relationships too and it is necessary for employers to follow the procedures laid down in the CPPD. Personal data shall only be processed in accordance with the procedures and principles regulated by CPPD or other related codes. General principals on processing of personal data are stipulated under the Article 4 of CPPD as follows: To be in conformity with the law and good faith; To be accurate and if necessary, up to date; To be processed for specified, explicit, and legitimate purposes; To be relevant, limited and proportionate to the purposes for which they are processed. To be stored only for the time designated by relevant law or required for the purpose for which they are processed. Besides from the general principles, requirements for the processing of personal data are also stipulated under the CPPD. Personal data shall not be processed without obtaining the explicit consent of the data subject (Art. 5 of CPPD). However the exceptions of the general rule are laid down under the same article as follows:  When it is explicitly stipulated by law; When it is necessary in order to protect the life or physical integrity of the data subject or another person where the data subject is incapable of giving consent due to physical impossibility or where the consent of the data subject is legally invalid; When it is necessary to process the personal data of parties of a contract, provided that the processing is directly related to the conclusion or performance of the contract; When it is necessary for the data controller to comply with a legal obligation; When the relevant information is made public by the data subject; When it is necessary for the institution, usage, or protection of a right; When it is necessary process the data for the legitimate interests of the data controller, provided that the fundamental rights and freedoms of the data subject are not violated. It is necessary to emphasize that some of the data are considered as special. Data relating to race, ethnic origin, political opinions, philosophical beliefs, religion, sect or other beliefs, appearance and dressing, membership of association, foundation or trade-union, health, sexual life, criminal conviction and security measures, and biometrics and genetics are in the special category of personal data (Art. 6 of CPPD). Same article also stipulates that the data in the special category cannot be processed without obtaining the explicit consent of data subject or without it is permitted by law(113). Being a data controller puts employer under various obligations such as obligation to inform and obligations regarding data security. On the other hand, the employer has to fulfil his/her liabilities regarding the rights of data subjects stipulated in the Article 11 of CPPD. Employers or the person who is authorized by the employer shall fulfil the following obligations within the scope of obligation to inform (Art. 10 of CPPD): To inform the employee on the identity of the data controller and its representative (if any), To inform the employee on the purposes for which personal data is processed, To inform the employee on the persons to whom processed personal data might be transferred and the purposes of this transfer, To inform the employee on the method and legal cause of collection of personal data, To inform the employee on his/her rights set forth under Article 11 of CPPD. The employers also have various liabilities on providing data safety. The employer shall take all necessary technical and executive measures for providing an appropriate level of security in order to prevent unlawful processing, unlawful access of personal data and providing protection of personal data (Art. 12 of CPPD). If the employer assign another person (real or legal) to process the personal data on behalf of himself/herself, the employer shall still be jointly liable with such persons with regard to take the necessary measures stipulated in the Article 12/1 of CPPD. Besides the obligations of employers mentioned above, all employees may appeal to the employer to learn whether personal data relation to him/her is processed and request information about it if the data is processed (Art. 11 of CPPD). On the other hand, employees have right to appeal to the employer to learn the aim of the processing his/her personal data and whether the data is processed in accordance with that aim; and to know the third persons who received the personal data inside or outside the country. Moreover, the employees may request from employer to make correction in case personal data are processed incompletely or inaccurately; to delete or exterminate the personal data in accordance with the Article 7 of CPPD(114). It is important to note that if the data subject suffer damages because of the processing of his/her personal data unlawfully, s/he may request compensation for the damages (Art. 11/1-(ğ) of CPPD). 2. Occupational Health and Safety The employer shall take all necessary precautions to ensure the occupational health and safety in the workplace and provide tools and materials completely (Art. 417/2 of TCO). Duties of employers regarding the occupational health and safety may be listed as follows: Duty to monitor and supervise Duty to train and inform Duty to perform risk assessment Duty to perform healthcare surveillance Duty to report work accident and to keep record Duty to prepare emergency plan and to evacuate Duty to establish committee of occupational health and safety Duty to employ occupational health and safety professionals Occupational health and safety measures mainly aim to protect employees. Complying with the duties is extremely important to prevent work accidents and occupational diseases. It should also be noted that the employer does not need to take these precautions by himself. Indeed, the employer may contract out services relating to occupational health and safety measures. Employers’ duties regarding the occupational health and safety are examined in details under the chapter 2 of this book. To avoid falling into repetition, occupational health and safety is shortly mentioned here. D. Duty to Make Payment for Employee Inventions Inventions made by employees may be regarded as “service invention” (hizmet buluşu)(115) or “independent invention” (serbest buluş) based on the conditions stipulated in the Article 113 of the Code of Industrial Property(116). Accordingly, if the invention made by an employee during the employment relationship is a result of the activities that the employee is liable in a workplace, or based largely on the experiences and works of the workplace, the invention will be regarded as service invention. Otherwise, the invention will be regarded as independent invention. When the employee makes a service invention, s/he is obliged to inform the employer in writing without delay. If the invention is made by more than one employee, the notification may be done together (Art. 114/1 of CIP). The employer may claim full or partial rights regarding the service invention. The claim has to be made in writing within four months of the date on which the employer has received the notice. If the employer does not make any claim or the claim is not made in time, then the invention will be regarded as independent invention (Art. 115/1 of CIP). In case the employer makes a full claim regarding the service invention, all the rights of the invention are transferred to the employer upon the notification of the employer to the employee (Art. 115/2 of CIP). In case the employer makes a partial claim for the service invention, the invention shall be considered as an independent invention. In this case, the employer may use the invention based on the partial right. However, if the usage by employer makes it considerably difficult for the employee to evaluate his/her invention, the employee may ask the employer either to claim the full rights of the invention or to abandon the partial right. If the employer does not respond to the employee’s notification of this request within two months from the date of receipt, the employer’s right to use the invention shall be terminated on the basis of the partial right (Art. 115/3 of CIP). If the employer has full claim on the service invention, the employee may ask the employer to pay him/her a reasonable price. If the employer has a partial claim on the service invention, the employee has the right to demand a reasonable price to be paid to him/her if the employer uses the invention (Art. 115/6 of CIP). The employee is obliged to inform the employer without delay if s/he makes an independent invention while s/he is in the employment relationship. The notification must provide information about the invention and, if necessary, the manner of carrying out the invention, so that the employer can reach a conclusion whether the invention is considered as an independent invention (Art. 119/1 of CIP). The employer may raise an objection that the invention is not an independent invention by a written notice within three months from the date of notification made to him/her (Art. 119/2 of CIP). It is important to note that the employee is obliged to keep the invention confidential unless the invention acquires the qualification of independent invention (Art. 114/6 of CIP).