POST PANDEMIC WORKING STRUCTURES - IS REMOTE WORKING STILL POSSIBLE?
Remote working scheme, which was included in Labor Law No. 4857 in 2016, defined in Article 14 of the Law. It is mentioned that remote working is a business relationship established in written, based on the principle that the employee performs the act of working within the scope of the work organization created by the employer at home or outside the workplace.There is no doubt that such scheme is based on technological communication tools. Upon the declaration of lock-down due to pandemic all over the world and in our country, practices such as remote working, flexible working, short working have become widespread in business life. In this process, many employers have adopted the teleworking model, especially for their white-collar employees.
The remote working system was included in the Law in Turkey in 2016, but it was stated that the principles of remote working would be determined by a following regulation. The provisions of the Regulation have been introduced five years on “The Remote Working Regulation” published in the Official Gazette dated 10.03.2021. For this reason, considering that the transition to the remote working model have started as of 2020, but Turkey was caught unprepared for this process in terms of legal provisions. Following the transition to the normalization process along with the decrease of the effects of the pandemic and the number of the cases, the remote working model in many workplaces has been terminated, and the transition to physically working conditions in the workplace has been effected. With the transition to the physical working system, there are conflicts regarding both the transition process and post-transition employee behavior in practice. For this reason, in order to resolve disputes in transition process, the change should be evaluated according to two different origins which are as follows: existence of the principle of remote working during the establishment of the employment contract and the other is, enabling the remote working system during the validity of the employment relationship.
If the remote working system is agreed during the establishment of the employment contract, the transition to the physical working system will not be considered as a fundamental change in the employment contract and changes can be made by notifying the employee in written form. The employee shall have the right to accept or reject the fundamental change within 6 working days. If the change proposal is not accepted by the employee, the employment contract shall be terminated by the employer - provided that the change is based on a valid reason - in written. If the employee is notified in written form that the physical work system will be switched to, and the employee does not object and accepts the change, the employee shall be deemed to fulfill his obligation to exist in the workplace in accordance with the employer's orders and instructions.
During the existence of the employment contract, in case of switching to the remote working system within the scope of pandemic measures, in accordance with the Article 14 of the Law; “In case the remote working will be implemented in the whole or part of the workplace due to compelling reasons specified in the legislation, the request or approval of the employee shall not be required for the transition to remote working.” Therefore, because of the omission of the compelling reason due to switching to remote working scheme, the employer’s consent for returning to the physical work system will not be required within the framework of good faith.
In practice, we encounter employees who reject to be in the workplace but works as in the remote working scheme by responding to e-mails, attending meetings and performing the job expected from the employee. If the employee gives the impression that he is at the workplace, such impression shall cause the termination of the employment contract based on a valid reason. With this regard, the employee will not act in line with accuracy and commitment to the employer. The relevant Article exemplifies cases where the employee does not act in accuracy and commitment. The Law’s approach against such behavior is an abuse of trust towards the employer. The relevant act shall be considered as an example of deceiving the employer which is a basis for termination on a valid reason.
If the employee does not accept the employer's offer to switch to the physical working system in spite of the warnings and not execute any obligations as for the physical working scheme, it will be considered as non-compliance with the employer's instructions. In this context, the termination of the employment contract should be considered as a termination with a valid reason since the worker insists on not performing the duties, he is obliged to execute even though he is reminded. Termination on a valid reason has been exemplified by Turkish Supreme Court through cases where the employee leaves with work computer, wills to determine his own working hours, having breakfast at the workplace and completes the work remotely. On the other hand, several decisions given by Turkish Supreme Court states that the employer shall have a rightful termination right, if the employee uses his phone during the working hours. In cases where the employee is not at the workplace but continues to work; it should be accepted that the employee does not perform his duties if he exhibits non-compliance with the working hours, resisting the workplace’s rules and acting in opposition to duties. Aforementioned cases shall be in contrary to the ordinary flow of life and therefore, it is accepted that the employee does not fully perform his duty.
Considering that the publication of Remote Working Regulation in 2021 along with the normalization process, the transition from the remote working scheme to the physical working scheme is a new process. Therefore, there are no precedent decisions yet regarding the disputes arising from the remote working scheme. For this reason, an evaluation should be undertaken on whether the termination of the employment contract will constitute valid reason or rightful termination right, by supervising the concrete case. The employee's failure to not attain the workplace shall be considered as rightful termination right of employers. However, if the employee attains to the workplace but leaves it before the working hours and completes his work remotely shall be considered as a termination on a valid reason. We support that it would be appropriate to record the non-compliant behavior of the employee following the transition to the physical working scheme and warning in the first place. Employers shall consider the principle of termination as a last option if the employee insists on his behaviors.