What Should be Done by the Employer in case of the Staff’s Absenteeism?2019, Erdemir & Özmen Attorney Partnership
What Should be Done by the Employer in case of the Staff’s Absenteeism?
A staff’s absenteeism at the workplace is one of the problems encountered frequently by the employers in the working life. However, the staff’s absenteeism at the workplace does not in any case constitute a ground of termination for justifiable reason on the part of the employer. The case, where a staff is not present at the workplace without obtaining permission from his employer or without resting on a justifiable excuse, is meant by the staff’s absenteeism. The cases, where the staff comes to the workplace late or where the staff does not perform his work though he is present at the workplace, do not bear the characteristics of absenteeism.
Termination due to absenteeism is that, in case of the staff’s absenteeism at the workplace for three working days within one month without a justifiable excuse, the employer may terminate the employment contract without notice and pay. However, in order for the employer to terminate the employment contract due to the staff’s absenteeism, the employer should first investigate the reason of the staff’s absenteeism at the workplace and find out whether or not the staff has a justifiable excuse for his absenteeism. In case the employment contract is terminated due to the staff’s absenteeism without performing this investigation, it will come into question for the employer to pay notice and severance pay if it is understood subsequently that the staff has a justifiable excuse.
The paragraph (g) of the article 25, entitled ‘The Right to Immediate Termination’ (by the employer for justifiable reason), of the Labor Code numbered 4857 prescribes that the employer has the right to terminate the employment contract immediately, in case of the staff’s absenteeism at the workplace for two consecutive working days or two times in one month on a working day following any holiday or three working days within one month without obtaining permission or without resting on a justifiable excuse. From the wording “one month” referred to in the paragraph (g), one month which will elapse after staff’s first absenteeism should be understood; therefore, this period does not mean one calendar month. Hence, the day the first absenteeism has taken place shall be found, and the one-month period shall end on the same of day of the following month. As also understood from the wording of the mentioned paragraph, the employer does not have the possibility to terminate the employment contract for justifiable reason, unless the absenteeism period is two consecutive working days or two times in one month on a working day following any holiday or three working days within one month.
With regard to the staff, a working day should be understood as a day that the staff should work. If the employment contract contains a provision stating that the staff shall work on public holidays, the absenteeism which has taken place also on those days will grant the employer the right terminate the employment contract for justifiable reason. For instance, if Saturday is determined to be a working day at the workplace, the absenteeism which has taken place on that day may also constitute a ground of termination for justifiable reason, in case the other conditions have occurred.
In case the absenteeism is based on a justifiable excuse, the employer does not have the right to terminate the employment contract immediately and for justifiable reason. (The matter “which circumstances justify the absenteeism” shall be assessed by taking into consideration the specifics of each concrete case. The cases, where the staff falls sick, one of his family members or relatives is deceased or where the staff testifies before a court or delivers his opinion as an expert before a court, etc., are considered as the circumstances justifying the absenteeism.) At the point of proof of the staff’s excuse, the reports received from private health institutions should also be taken into consideration by the employer, unless it is asserted and proved that the reports are forged.
Since a staff, to whom the employer granted paid or unpaid leave, shall not be expected to be present at the workplace during the leave period; it is not possible to say that the absenteeism has taken place in that case. However, in case the staff is not present at the workplace during the period for which the employer has not granted leave, where the staff states that he is taking his annual leave, in other words, in case the staff takes leave on his own motion, this case shall be deemed to be an absenteeism.
In the light of all above-mentioned, a staff’s absenteeism at the workplace does not always grant the employer the right to terminate the employment contract for justifiable reason.
What are the points necessary to be taken into consideration in order for the employer to terminate the employment contract for justifiable reason due to the staff’s absenteeism?
First of all, it is necessary for the employer to investigate the reason of the staff’s absenteeism. After that, a written notification should be made at the staff’s address which is most recently known, by taking into consideration the staff’s seniority period and personal file as well. This notification should request the staff to submit his defense on whether there is a justifiable excuse for his absenteeism and should remind the staff that he should immediately start working at the workplace.
Until such time as the text of the employer’s notification “go back to the workplace” is served on the staff, the employer should issue absenteeism records separately for each day that the staff is absent at the workplace, and these absenteeism records should also be undersigned by the witnesses at the workplace. Although not mandatory, if these records are issued separately for each absenteeism day and if the names of the witnesses are submitted to testify in a possible lawsuit, these will be in favor of the employer.
It should be stated that the power to terminate the contract, granted for the employer, shall not be exercised after six working days have elapsed starting from the date that one party has learned the other party’s behaviors resulting in the cases of rightful termination regulated by the legislation, and in any case one year after the act has occurred. These periods of time arise from the legislation and are strict time limits.
When all these conditions are met, it will be legally possible for the employer to terminate the staff’s employment contract.
The steps to be followed for the termination transactions are as follows: In the payroll of the staff that commits absenteeism, no payment should be indicated for the days that the absenteeism is committed, and the code “29- Termination by the employer due to the staff’s immoral, dishonorable or malicious conduct or other similar behavior” should be indicated as the insurance exit code, and the code “15- Absenteeism” should be selected as the ground of lacking day.