THE RIGHTS OF UNPAID WORKERS

The duty of paying wages, is the fundamental duty of the employer arising from the employment contract against the service liability of the worker.[1] According to the Labor Law, the wage should be paid at least once in a month and by the employment contracts or collective labor agreements, this payment time limit can be decreased to one week.

If the wage that the worker is entitled is not paid totally or partially by the employer; the worker will have the right to claim the wage payment within the period of limitation. According to the last paragraph of the article numbered 32 of the Labor Law; “the period of limitation for the unpaid wages is five years”. In addition, according to the particular regulation specified in the 1st paragraph of the article numbered 34 of the Labor Law; for the unpaid wages; the interest of default to be applied won’t be the legal interest rate but it will be the highest interest rate applicable to the deposit accounts. The Supreme Court will determine the highest interest rate applicable to the deposit accounts based on the interest applicable to one-year deposit regardless it is a public bank or a private bank interest rate.[2]

The unpaid worker can refer to the following claim methods:

1. He/she can claim the fulfillment of the duty of paying wages.

The worker can follow different methods for this claim:

• The worker can open an action for performance against the employer, in order to force the employer to fulfill the duty of paying wages.

• The worker can appeal to the Regional Directorates of the Ministry of Labour and Social Security. Upon the recourse made by a petition; the labor inspectors will inspect whether the wage of the worker is paid or not and if it is detected that the wage is unpaid; a document specifying the rights of the worker will be given to the worker. In addition, during the inspection, if it is detected any Violation of the public order; the criminal action will be taken against the employer.[3] But, it should be indicated that, the acceptation and the fulfillment of the duty by the employer upon this recourse, won’t provide coercive power of the adjudication.[4]

• The worker can ask the application of administrative sanctions against employer.

The article numbered 102 of the Labor Law regulates the administrative fine applicable to the employer in case of deliberate non-payment or short-payment of the wage.

In order to apply an administrative fine, the wrongful intention of the employer will be a must according to the clear wording of the provision. Consequently, in the event of a wage unpaid due to the facts arisen beyond the control of or without any negligence of the employer; the sanction of administrative fine will not be applicable.[5]

 2. The worker can use his/her right to refrain to work. (Art.34 of Labor Law)

 The requirements for the use of this right:

• The wage or the additional wages of the worker are not paid although they became payable.

• Even after twenty days from the wage payment date, the employer did not pay the total or a part of the wage. The time limit of twenty days should be considered as calendar day and not business day .[6] In order to use this right; the worker should absolutely wait the expiration of this time limit of twenty days, otherwise, the employer's rightful termination right will be arisen as the worker avoids working before the emergence of his/her legal right.

• The wages are not paid because of a reason other than force majeure. The force majeure is a non-voluntary, exogenous, unpredictable fact which liberate the debtor from the  faulty violation of the contract and which cause the insolvency resulting by the payment delay.[7] It should be strongly noted that the financial difficulties of the enterprise should not be deemed as a force majeure.[8] If the employer is unable to pay the wages due to a force majeure but the workers avoid working; then the employer will have the right to terminate the employment contract in accordance with the article numbered 25 of the Labor Law, as the workers do not have the legal right to avoid working.[9]

The employer cannot employ new employers to replace these workers who used their right to avoid working and cannot terminate their employment contracts. Even so, the employer terminates their employment contracts; in this case the termination will be unfair or invalid and the employer should bear the consequences.

3. The worker can rightfully terminate the employment contract

According to the article numbered 24 of the Labor Law; “ if the wage of the worker is not paid or calculated in accordance with the provisions of the Law or with the conditions of the contract” the worker can terminate rightfully the employment contract.  The right to terminate of the worker will be valid not only for the base wage but also for additional wages (bonuses, premiums, fuel assistance, clothing assistance etc.) .[10]

According to the wording of the law, in case of wage reduction made unilaterally by the employer; the worker will have the right to terminate the employment contract. But, if the worker terminates the contract on the grounds that the rise of wage is insufficient; then; in this case this termination will be unjust. 

Applying strictly the above mentioned rule may in some cases contradict the rules of honesty and good faith. Concerning an enterprise where the wages are normally paid on time, if the wage payments are delayed for a short time just in some cases; then the worker shall not have the right to terminate the contract due to a rightful reason.[11]

As it is noticed, even there are many possible procedures to claim an unpaid wage; the worker’s request about the continuation of the employment contract and the particular conditions of the concrete case should be considered as the consequences of all legal procedures are different.

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[1] Süzek Sarper, İş Hukuku, Yenilenmiş 8. Baskı, 2012, p.376

[2] Y9HD 28.10.2008, 30109/29250, Süzek Sarper, p.399, fn.59

[3] Dulay Dilek, İşçi Ücretinin Ödenmemesinin Yaptırımı, Dokuz Eylül Üniversitesi Yüksek Lisans Tezi, 2011, p.88

[4] Evren Öcal Kemal, İş Hukukunda Ücret ve Uygulaması, Ankara, 2007, p. 125

[5] Akyiğit Ercan: ‘’4857 Sayılı İş Kanununda İdari Para Cezaları’’, Çimento İşveren, Eylül 2005, p.21

[6] Mollamahmutoğlu Hamdi, İş Hukuku, 2. Bası, Ankara 2004, p.416

[7] Akyiğit Ercan: “Ücreti Geciken İşçinin Çalışmaktan Kaçınması”, Legal İHSGHD, 2005/5, p.16-26, p.21

[8] Süzek, p.403

[9] Mollaoğlu, p.416

[10] Ekonomi Münir, İş Hukuku, Cilt I, Ferdi İş Hukuku, 2.Bası, İstanbul 1980, p.183

[11] Süzek, p.715