IS IT POSSIBLE TO SETTLE EMPLOYEE'S WAGE BY BARTER?
Detailed regulations protecting employee wage have been made in Turkish legislation, including Law No. 4857 on Labor. Indeed, the wage claim, one of the most important issues of Labor Law, will affect not only the employee but the entire society. Restrictions on the attachment, offset, and deduction of employee wage are extremely important in the context of protecting the employee’s claim. Article 55 of the Constitution provides constitutional protection to employee wage by stating: "Wage is the return of labor. The state takes necessary measures to ensure that workers receive a fair wage appropriate to the work they do and benefit from other social aids." General meaning of wage is defined in the first paragraph of Article 32 of Law No. 4857 as "the amount provided and paid in money by the employer or third parties in return for a job."
The regulation aimed at protecting employee wage is included in Article 35 of Law No. 4857 as follows: "More than one fourth of the monthly wages of workers cannot be seized or transferred and assigned to another person. However, the amount determined by the judge for the family members that the employee is obliged to support is not included in this amount. The rights of alimony creditors are reserved."
In fact, not only the worker himself but also the family members he/she is obliged to support are protected in the protection of employee wage. Since Article 35 of the Labor Law stipulates that the amount determined by the judge for the family members that the employee is obliged to support will be additionally added to the amount that cannot be seized. In other words, there will be no attachment limitation in the payment of alimony debts from the worker's wage. In this case, the ¼ ratio will not be taken into account, and if the monthly alimony amount exceeds ¼ of the salary, deduction will be made up to the amount of the alimony.
Although the attachment, transfer, and assignment issues are regulated in the Labor Law, the issue of pledging and bartering of employee wages is not regulated. Indeed, the employer may have various debts to the employee other than wages, such as severance pay, traffic fines, and the employer may have the right to offset their claims against the employee's wage in accordance with legal limits.
The issue of offsetting the employee's wage claim is regulated in the Turkish Civil Code No. 6098 ("TCC") (Articles 407-410 of the TCC). According to Article 407/2 of the TCC, "The employer cannot offset his claim against the employee's wage debt without the employee's consent. However, claims arising from damages proven by a court judgment caused intentionally by the worker can be offset up to the seizable part of the wage."
As can be seen, two exceptions to the rule that the employee's wage cannot be offset are introduced in the relevant article. The first of these is when the employee intentionally causes harm to the employer. In this case, the employer can offset the claim arising from the damage caused intentionally by the employee against the wage debt without obtaining the employee's consent. However, the situation of causing harm must be finalized by a court judgment. The employer's offsetting possibility arising from this exception is limited to ¼ of the employee's wage.
The second exception is when the employee consents to the offset. In the event that the employee consents to the offset to be made, the entire amount of the employer's wage debt against the worker can be offset. In the event that the employee consents to the offset, there will be no monetary limitation.
The legislator considers the offsetting and setoff of employee wages contrary to law as a just cause for the termination of the employment contract from the employee's perspective. Indeed, in Article 24(2)(e) of Labor Law No. 4857, it is stated that: "If the employee's wages are not calculated or paid in accordance with the provisions of the law or contract", then the employee has the right to terminate the contract with a valid reason.
Conclusion
The employer cannot offset his claim against the employee's wage without the employee's consent. If the employee consents, the entire amount of the employer's wage debt against the employee can be offset. In addition, the portion (¼) of the wage that can be seized due to claims arising from proven damages caused intentionally by the worker can be offset from the wage debt without the consent of the employee.