Leaving work due to military service.

Leaving work due to military service. | Lawyer in Izmir

Compulsory military service is the name given to the period of military service. However, short-term conscriptions are also possible. Although rarely seen in practice, a worker who has completed their military service and is under a certain age being called up for a short training exercise is an example of a duty outside of compulsory military service. The paid military service option also offers the possibility of benefiting from this article of the law. The last paragraph of Article 31 of the Labor Law defines leaving employment due to military service as "due to any military and legal duty." Therefore, the regulation also covers compulsory military service.

Law No. 4857 According to Article 9/1, workers and employers generally have the right to enter into an employment contract or not, and to structure such a contract according to their needs. However, in labor law, the freedom to establish an employment contract is subject to significant limitations, in line with the social purpose of this branch of law and with the concern of protecting workers. For this reason, there is an obligation to enter into a contract in the limited cases listed below. These are: disabled individuals and former convicts, those who leave their jobs due to disability, those who leave their jobs due to military service or legal obligations, those who are dismissed en masse, journalists dismissed due to illness, and those who hold positions in the management of workers' organizations.

As can be seen, working and leaving a job due to military service is one of the circumstances that restricts the freedom of contract. Military service and work arising from the law restrict the freedom of work of the social partners. If we examine the relevant article of the law:

Military Service and Employment Arising from the Law, Article 31 – The employment contract of a worker who leaves their job due to being called up for military service, maneuvers, or any other reason other than compulsory military service, or due to a work obligation arising from any law, shall be deemed terminated by the employer two months after the date of leaving their job. For the worker to benefit from this right, they must have worked in that job for at least one year. For each additional year of service beyond one year, two days are added. However, the total period cannot exceed ninety days.

The employee's wages do not accrue during the waiting period required for the employment contract to be considered terminated. However, the provisions of special laws regarding this matter are reserved. Even if the termination of the employment contract by the employer or the employee is notified to the other party within this period due to another reason arising from the law, the period specified by law for termination begins to run after the expiry of this period. However, if the employment contract is for a fixed term and the contract terminates automatically within the period mentioned above, the provisions of this article do not apply. Employees who leave their jobs due to any military or legal obligation, if they wish to return to work within two months of the end of this obligation, must be re-employed by the employer in their former job or in a similar job if there is a vacancy, or in the first available vacancy, with preference over other applicants, under the current conditions. If the employer fails to fulfill the obligation to enter into an employment contract despite the required conditions being met, the former employee who requested re-employment shall be paid compensation equivalent to three months' wages.

Examining the relevant legal provision, we see the following points: The termination of an employee's employment contract due to military service; the employee's application to the employer within two months of completing their military service; the employee's immediate reinstatement to their former job or a similar position if a vacancy becomes available, or reinstatement under the current conditions; and compensation for breach of contract.

The two-month period mentioned here is a forfeiture period, and if the employee does not apply within two months, the employer will not be obligated to rehire the employee or pay compensation. There are no specific formal requirements for the employee's application. However, it is important to submit it in writing to facilitate proof in any future disputes.

The regulation obligates the employer to re-employ the former employee, giving them no choice in the matter. The employer must employ the former employee under the conditions in place at the time of hiring. Failure to comply with this obligation will result in the employer having to pay the former employee compensation equivalent to three months' salary. A person seeking severance pay due to military service must first prove that they are genuinely going to military service. For this reason, the "Military Service Call-Up Certificate" obtained from the relevant institution must be attached to the termination notice. The military service call-up certificate and the termination notice must be sent to the employer in writing. It is beneficial for the employee to have this notification done through a notary and a lawyer.

How should an employee's notification be made when leaving their job due to military service?

An employee wishing to leave their job due to military service must notify their employer in writing. The letter must include their military service assignment document or another document proving their departure due to military service. If the employee has served for one full year or more, they are entitled to severance pay. However, if the employee intends to return to the same workplace after military service, they can leave without receiving severance pay. This is because, as mentioned above, the employee must be reinstated at the same workplace upon their return from military service. If the employee resumes work at the same workplace after completing their military service, their pre-military service employment will also count towards their seniority.

Can a worker who leaves their job due to military service receive unemployment benefits?

The conditions for receiving unemployment benefits are as follows:

• 1. To become unemployed through no fault of one's own.,
• 2. Being subject to an employment contract for the last 120 days before the termination of the employment contract, (for those whose employment contract ended on or after January 18, 2019, regardless of whether it was with the same employer and the reasons for missing days, the existence of an employment contract during the last 120-day period before the termination of the employment contract)
• (In this case, it is sufficient to meet the condition of the last 120 days. Premium payment is not required.)
• 3. Having paid unemployment insurance premiums for at least 600 days within the last three years before the termination of the employment contract,
• 4. Apply in person or electronically to the nearest İŞKUR (Turkish Employment Agency) office within 30 days of the termination of the employment contract.

As a rule, workers who resign are not paid unemployment benefits. However, while leaving a job due to military service is considered a type of resignation, it is a separate situation. The essential condition for receiving unemployment benefits is that the worker has become unemployed through no fault of their own. Since leaving a job due to military service is also a compulsory and involuntary separation, workers who leave their jobs with this code, i.e., code 12 - military service, and meet the other necessary conditions for receiving unemployment benefits (600 days of premium payments in the last 3 years / 120 days of employment under a contract and application), are entitled to receive unemployment benefits.

Supreme Court 9th Civil Chamber, 03.05.2010, Decision No. 2008/24783E - 2010/12033K

“"As stated in the established decisions of our department, it is a legal requirement that an employee who leaves their job due to compulsory military service is entitled to compensation equivalent to 3 months' wages, provided that the conditions in Article 31/last paragraph of the Labor Law are met."”

Supreme Court 9th Civil Chamber, Decision No. 2006/31653

‘"Article 31 of the Labor Law No. 4857 imposes an obligation on the employer to re-employ the worker after military service and stipulates a penalty of compensation if this is not done. This obligation and penalty does not mean that the employment contract of the worker who is not re-employed after military service has been terminated by the employer."’

The ruling of the 9th Civil Chamber of the Court of Cassation, case number 1991/17410, decision number 1992/3138.

‘"A worker who voluntarily resigned from his job and then went to military service one year and one month later, requested severance pay, stating that he left his job for this reason. The time elapsed is not a reasonable period to accept military service as the reason for leaving. The request should be rejected."’

The ruling of the 9th Civil Chamber of the Court of Cassation, case number 1993/10594, decision number 1994/3038.

"If an employee begins compulsory military service three months after leaving their job, their departure should be considered as due to military service, and the period thus completed should be taken into account in the calculation of severance pay."”

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