In Case the Employer Does Not Increase the Laborers’ Wages Equally, Does It Mean That the Employer is in Breach of His Obligation to Treat Equally?2019, Erdemir&Özmen Avukatlık Ortaklığı
In Case the Employer Does Not Increase the Laborers’ Wages Equally, Does It Mean That the Employer is in Breach of His Obligation to Treat Equally?
The employer’s obligation to treat his laborers equally is regulated by the Labor Code numbered 4857. Pursuant to this legal arrangement, the employer is under the obligation to act equally for each laborer and not to make a discrimination among his laborers. The employer’s breach of this obligation which is regulated in detail under the article 5 of the Code grants the laborer to terminate the employment contract for justifiable reason and to claim discrimination compensation.
What is the scope of the obligation to treat equally?
The obligation to treat equally is regulated comprehensively by the article 5 of the Labor Code numbered 4857. When the provisions contained in the article are reviewed, we observe that the employer’s obligation to treat equally is prescribed as follows:
In the employment relationship, the employer shall not:
- make a discrimination based on language, race, sex, political opinion, philosophical belief, religion and sect or based on similar reasons;
- directly or indirectly treat a laborer differently due to sex or pregnancy, in concluding the employment contract, in establishing and implementing its terms and conditions and in terminating the employment contract, unless biological reasons or reasons pertaining to the characteristics of the work necessitate;
- decide a lower wage for an equal or an equivalent job due to sex.
The principle of equal treatment applies to the entire field of law. In terms of the Labor Law, this principle imposes on the employer the obligation not to treat differently among the laborers working at the workplace, unless there is a justifiable and an objective reason to the contrary. In this respect, the employer’s right to management is restricted. In other words, the prohibition to make discrimination requires the employer not to make discrimination arbitrarily among the laborers working at the workplace. However, the obligation to treat equally does not require all the laborers to be brought into the same position without considering any differences. The said principle aims to prevent the laborers in the same position from being treated differently.
In determining whether or not the principle of equal treatment is followed, there should be two or more than two laborers whose lengths of employment are equal, whose education levels are the same or equal, who work in the same or similar job, with the same or similar productivity and in brief, who are comparable by their objective and subjective qualifications, depending on the same employer and the employee who puts forward an allegation in this direction.
In case the employer does not increase the laborers’ wages equally, does it mean that the employer is in breach of his obligation to treat equally?
Even though the employer’s right to management is restricted by the obligation to treat equally; it is necessary that one of the reasons expressly specified by the Code has taken place in order to adopt that this obligation is violated. In other words, “an absolute obligation to treat equally in every case” is not prescribed by the Code. Such case is an indicator of the fact that the employer’s right to management is reserved. So then, it is necessary to carry out an evaluation on whether the circumstance “not increasing equally the wages of the laborers in equal position” is included in the scope of the right to management or constitutes a breach of the obligation to treat equally.
When a review is carried out on both the statutory provision and the decisions of the Supreme Court of Appeals, it is concluded that the implementation of wages for the laborers who are in equal position by the employer remains within the employer’s right to management. The matter of how an increase shall apply to the laborers’ wages is also included in the employer’s right to management, provided that the employer complies with his obligation to treat equally. At this point, the matter necessary to be taken into consideration is that the cause of not increasing a laborer’s wage by the employer should not originate from one of the reasons referred to by the article 5 of the Code. In other words, while the employer increases the wages of all other laborers, if the employer does not increase one of his laborer’s wage for the reasons such as language, religion, race, sex or philosophical belief, this circumstance would represent a practice constituting a breach of his obligation to treat equally, rather than the exercise of his right to management.
In case the employer is in breach of his obligation to treat equally, the laborer who is exposed to discrimination may claim an appropriate indemnity in an amount of up to his four months’ wage, in addition to the rights he is deprived of. Furthermore, such laborer may terminate the employment contract for justifiable reason since he has been exposed to discrimination and claim his rights and receivables arising from the termination.
What are the rights of a laborer who is exposed to discrimination?
In conclusion, the employer’s obligation to treat equally is regulated under a broad scope, and it is necessary to assess additionally whether or not each concrete case constitutes a breach of this obligation. The obligation to treat equally comes into question in the implementations carried out to the detriment of the laborers in equal position. The matter “which of the laborers in equal position will be granted a wage increase and at what rate the increase will be granted or whether or not they will be granted a wage increase” remains within the employer’s right to management. However, the reason why a wage increase is not granted to a laborer is of importance in this practice. This is because; if the cause of not granting such wage increase originates from one of the reasons mentioned above, this shall mean that the employer is in breach of his obligation to treat equally towards the laborer. The laborer, who has been exposed to discrimination, may claim an indemnity in an amount of up to his 4 months’ wage, and terminate the employment contract for justifiable reason and thus, claim also his rights and receivables arising from the termination.