Employee Absence from Work

Employee Absence from Work – Lawyer in Izmir

When a worker falls ill or has an accident, a doctor issues a sick leave certificate. This certificate, also known as a medical exemption certificate, is issued by a doctor but is subject to certain legal limitations. Labor Law |’According to the law, if an employee's health deteriorates due to their own negligence or lifestyle, the employer may terminate the employment contract for just cause due to the employee's absence from work.

As is known, Article 25, paragraph II-g of the Labor Law No. 4857, which regulates the termination of the employment contract by the employer for just cause, states that if the employee fails to report to work for two consecutive working days without obtaining permission from the employer or without a just cause, or fails to report to work on the working day following any holiday twice in one month, or fails to report to work for three working days in one month, the employer may terminate the employment contract immediately and for just cause due to the employee's absence from work, for reasons that do not comply with moral and good faith principles.

The absence mentioned in the relevant article can be defined as the employee's failure to come to work on working days when they are expected to be there, without a justifiable reason and without permission from the employer, regardless of whether the absence is intentional or negligent. Therefore, absence will not be considered to have occurred in other cases where the contract is suspended and the employee is not required to be present, such as unpaid leave. In this context, for an employee to be considered absent, they must fail to come to work during the expected working hours without a justifiable reason and without permission from the employer. Otherwise, the employee cannot be considered absent.

In relevant court precedents, it has been held that for an employer to benefit from the clause regarding termination for just cause due to an employee's absence from work, they must investigate whether the employee has a valid excuse, issue a summons to the employee to return to work or to state their excuse, and the absence must be proven in writing by an attendance report signed by at least two company employees.

The Labor Law No. 4857 outlines the circumstances under which an employee may not report to work. These can be exemplified as follows:.

• The worker takes sick leave for 3 consecutive working days or the total number of sick leave days exceeds 5 working days in a month (Labor Law Article 25/1)
• The worker's absence for two consecutive working days without permission and without justifiable cause, or twice within one month on a working day following a holiday, or a total of three working days within one month (Labor Law Article 25/2-g)
• The existence of a compelling reason that prevents the employee from working at the workplace for more than one week (Labor Law Article 25/3)
• If an employee is arrested or detained and is therefore unable to come to work, this exceeds the notice periods for termination stipulated in Article 17 (Labor Law Article 25/4).

The general provisions regarding employee absenteeism are defined in the law as follows. All of the above-mentioned instances of absenteeism fall under Article 25 of the Labor Law, which allows employers to dismiss employees for just cause. In other words, employees can be dismissed for just cause due to their absence from work in these circumstances. Dismissal due to employee absenteeism is subject to strict procedural rules. Since it has been observed in practice that failure to comply with procedural rules regarding employee absenteeism leads to loss of rights, the general procedural rules in this regard should be as follows:

1. Records: A separate record is kept for each day of absence from work or unauthorized departure. While the department managers signing the records must be the same, care should be taken to ensure that the witnesses are different individuals. If this is not possible, the same individuals should be asked to sign.
2. Warning Notice: If an employee fails to report to work for two consecutive working days without permission from the employer or without a valid reason, a warning notice will be sent to the employee, giving them six working days from the last day of absence to either return to work or provide a valid excuse. The time given to the employee in the warning notice is usually 2-3 working days. It is important to note that if this period is missed, the employee's absences on those days cannot be used as grounds for termination.
3. Notification and Deadlines: After sending the employee a notification to return to work and a reason for absence, immediately contact a notary public to obtain the barcode number of the notification. Then, within 3-4 days at the latest, check on gonderitakip.ptt.gov.tr to verify receipt of the notification. From the date of notification, wait for the 2-3 day period given in the notification for the employee to return to work or provide a reason for absence. If the employee does not return to work or provide a reason for absence within this period, termination procedures should be initiated.
4. Termination procedures: If an employee fails to report to work or provide a valid excuse within the given timeframe, termination procedures must be completed within 6 working days from the expiration of the given timeframe. (For example, if an employee was given 2 working days to report to work or provide a valid excuse, termination procedures must be completed no later than 2 + 6 = 8 working days from the end of the given timeframe.)

Relevant Court Decisions For absence to constitute grounds for termination, it must not be based on a valid excuse. Since an employee granted paid or unpaid leave by the employer cannot be expected to go to work during their leave, this cannot be considered an absence. However, determining the timing of annual leave falls within the employer's management rights, so the employee cannot leave on their own accord. An employee's failure to report to work, claiming to be on annual leave, constitutes an absence unless the employer deems it to be on leave. (9th Civil Chamber, 2007/21656 E. 2008/18647 K)

An employee's absence from work does not always give the employer grounds for justified termination. If the absence is justified, the employer does not have the right to terminate the employment contract immediately and for just cause. Examples of justifiable reasons for absence include illness, the death or illness of a family member or close relative, or the employee's participation in witness or expert testimony.

The employer does not have the right to terminate the employment contract unless the period of absence is two consecutive working days, or two instances within a month on a working day following a holiday, or three working days within a month. The employee must not have worked at all on the specified working days. Simply summing up the hours of absence to reach a certain number of days does not create grounds for termination.

Absenteeism is the situation where an employee does not attend to their work. An employee who goes to the workplace but does not begin to perform their work obligations should not be considered absent. If an employee persistently refuses to perform their duties after being reminded of them, this constitutes a separate ground for termination, and the matter should be evaluated in accordance with Article 25/II-h of the Labor Law No. 4857.

The term "one month" in the article refers not to a calendar month, but to the month that will pass after the first absence. The one-month period ends on the same day of the following month as the day of the first absence. If the day of the first absence is not found in the last month, the one-month period ends on the last day of the last month. Subsequent absences are evaluated within the following monthly periods. (9th Civil Chamber, 2007/15152 2008/10326)

The holiday mentioned in Article 25/II-g of the Labor Law does not only refer to official holidays. Holidays agreed upon in the employment contract must also be taken into account. A working day refers to the days the employee is required to work. If an employee takes a day off during the week and is required to work on Sunday, then Sunday is considered a working day for that employee.

The 9th Civil Chamber of the Supreme Court of Appeals, in its decision numbered 2012/23462 E. 2012/37672 K., ruled that in workplaces where Saturdays are worked half-day, Saturday is still considered a working day, and an employee who is absent on Friday and Saturday will be considered to have been absent for two consecutive days. The burden of proof for absence rests with the employer, while the burden of proof for a valid excuse rests with the employee. A separate report must be prepared for each day of absence. A single report covering all days of absence is not considered valid. Furthermore, the prepared reports must be corroborated by witnesses.

If a disciplinary penalty has been imposed or granted due to absenteeism, this absenteeism cannot be considered a valid reason for subsequent termination. The employee cannot be penalized twice. (9th Civil Chamber, 2008/8569-2640 Annex, 2011/16824-24234 Annex)

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