18.01.2023

Authors: Sema Çelebi,  Serdarhan Güler

Workplace practices, which are among the sources that determine the working conditions between the employee and the employer, are one of the unique concepts of labor law. From time to time, employers may give bonuses to their employees, even if not specified in individual or collective labor agreements, to increase productivity, quality or the number of products produced or to encourage the reduction of defective products, energy expended or accidents. Sometimes employers pay bonuses to employees under various headings without any reason or to reward their performance. In addition, the employer may also provide a leaves of absence or gifts to employees at various times of the year or on various occasions. We will explain in which cases these benefits provided by the employer may turn into a workplace practice by defining the workplace practice.

1.   The Concept of Workplace Practice 

In order to discuss workplace practice in our legal context, the employer must provide a benefit without prejudicing the right of withdrawal, and must unilaterally provide these practices either to all workers or to specific workers consistently, under identical terms. Furthermore, workers must possess tacit acceptance and a well-founded expectation that such continuity will persist in the future.[1]

As delineated through the elucidations above, it is not necessary for the employer to have wanted or thought that these practices would be binding in the future. It is sufficient for the employees to infer from the employer's behavior that the practice will be permanent according to the rules of honesty. [2]

2. Prerequisite Conditions for Workplace Practice 

As previously expounded, a workplace practice must be of a general nature, continuous, and provided under uniform conditions, and the employer must not expressly or implicitly reserve of withdrawal right.

2.1 General Nature of the Practice 

For the discourse on workplace practice to be pertinent, it necessitates that the practice itself is inherently general. The practice should extend to all workers or a proportionate subset in an equal position thereof. Thus, while a particular skillful employee may experience regular benefits, this specificity does not coalesce into a workplace practice. Workplace practice must be ascertained through a general and uniform approach. [3]

2.2 Continuity of Practice 

Another requisite condition pertains to the persistent enactment of the practice within the workplace over a certain period. Our legal framework refrains from setting precise standards for evaluating the parameters of repetition or the frequency required for continuity. Consequently, the evaluation of the continuous nature of the practice must hinge upon case-specific characteristics, assessing its enduring relevance in the workplace. It has been ascertained that inferences may suffice in line with the good faith.

It should be added that the Court of Cassation requires the practice to continue for 3 years for premium and bonus payments to become a workplace practice. As a matter of fact, according to the decision of the 9th Civil Chamber of the Court of Cassation dated 16.11.2015 and numbered 2014/21153 E. 2015/32270 K;

"The premium payment made by the employer, without considering success or any other criteria, lasted for 3 years in a row, became binding and became a workplace practice by repeating it after 3 years. In that case, it is not possible for the employer to return from this practice with a unilateral decision. The defendant did not submit a document indicating that the plaintiff consented to the withdrawal of the premium practice. The plaintiff's premium for the years 2008-2009-2010-2011 should be paid and the premium for 2011 should be added to the wage drift and the difference arising from this should be paid as         payment in lieu of notice. Since the claimant did not work for the whole year 2011, the premium receivable for this year should be calculated on a per diem deduction [4].”

2.3. Preservation of Uniform Conditions 

The judicial decisions and scholarly deliberations on workplace practices also underscore the necessity for uniformity in providing benefits under workplace practices. With this criterion, the repetition by the employer of payments and benefits that are based on the same reason and have some changes in terms of quantity or quality will constitute the basis for a continuous workplace practice.

2.4. Absence of Reserved Withdrawal by the Employer 

The final precondition for a practice became a workplace practices resides in the employer refraining from either explicitly or implicitly reserving the right to discontinue these practices. If the employer reserves the right to withdraw the benefits it provides to its employees, then, according to the good faith, the employees will not have any belief or acceptance that the relevant practice will continue in the future. For this reason, it cannot be said that a practice become a workplace practice.[5]

· Is it Possible for the Employer to Unilaterally Remove or Change the Workplace Practice?

         As in employment contracts and internal regulations, fundamental changes in workplace practices that are detrimental to the employee can only be made provided that Article 22 of the Labor Law No. 4857 ("Law") is complied with. In other words, the employer can only make a fundamental change in the working conditions resulting from the employment contract, the personnel regulations and similar sources annexed to the employment contract, or the workplace practice, by notifying the employee in writing. Changes that are not made in accordance with this form and are not accepted by the employee in writing within six business days will not be binding for the employee.

According to the decision of the Court of Cassation General Assembly of Civil Chambers (Yargıtay Hukuk Genel Kurulu) numbered 2012/9-1166 E. 2013/279 K. and dated 27.02.2013

"When the case is analyzed within this framework: Although the decision of the board of directors of the defendant employer regarding the abolition of the bonus, which is a workplace condition, was announced at the workplace on 31.12.2003, there is no written document showing that the plaintiff accepted the change regarding the abolition of the bonus application in writing within six working days.

In the discussions held in the General Assembly of Civil Chambers, the minority of the opinion holders argued that Article 22 of the Law No. 4857 should not be interpreted literally, that the non-payment of the bonus became a workplace practice since the plaintiff did not object to the written notification regarding the abolition of the bonus and remained silent for a long time and signed the payrolls, and therefore the court decision was appropriate, but this opinion was not adopted by the majority.

As such; while the Local Court should comply with the reversal decision of the Civil Chamber, which was also adopted by the General Assembly of Civil Chambers, it is against the procedure and the law to resist the previous decision with the unvalid ground [6]."

Concluding Remarks 

Consequently, a practice may be said to be a workplace practice if the employer unilaterally, without reserving the right of withdrawal, provides a benefit to all or some of the employees on a continuous basis, under the same conditions, and if the employees have an implied acceptance and justified expectation that this practice will continue in the future. Therefore, it can be stated that these practices will become binding for employers. For this reason, it can be said that a fundamental change to be made in the working conditions formed by the workplace practice can only be made by notifying the employee in writing. Changes not made in accordance with this form and not accepted by the employee in writing within six working days are not binding on the employee.

 [1] According to the decision of the 7th Civil Chamber of the Court of Cassation (Yargıtay 7. Hukuk Dairesi’nin 2015/6315E. ve 2016/6457 K. sayılı ve 16.3.2016 tarihli kararı) dated 16.3.2016 and numbered 2015/6315E. and 2016/6457 K.; "...Premium application can also be agreed upon by individual or collective labor agreements. Even if it is not agreed in the employment contract, the regular premium payment made unilaterally by the employer is a "workplace condition". In any case, it is not right for the employer to unilaterally eliminate or reduce the practice. Changes in working conditions to the detriment of the employee in terms of the premium practice must be realized within the scope of Article 22 of Law No. 4857. The change in terms of premiums stipulated by the collective labor agreement is not valid even with the individual waiver of the employee. The change that can be made in this respect by the persons authorized to sign the collective labor agreement shall only be effective prospectively...".

[2] Sarper SÜZEK, Workplace Practices, Prof. Dr. Kemal Oğuzman'a Armağan, Ankara 1997, p.154.

[3] Sarper SÜZEK, İş Hukuku, 20th Edition, Istanbul, 2020, p. 76

[4] See also, "As stated in the decisions of the Court of Cassation, it is contrary to the procedure and the law to resist the previous decision while it is necessary to calculate the bonus receivable by complying with the reversal decision and to decide according to the result, considering that this issue has become a condition of the workplace in case of bonus payments for more than 3 years. Therefore, the decision of persistence should be reversed." ( General Assembly of Civil Chambers, E. 2003/9-11, K. 2003/54, T. 05.02.2003)

[5] Sarper SÜZEK, İşyeri Uygulamaları, p.154.

[6] For a review of this decision and the contrary decision of the 22nd Civil Chamber of the Court of Cassation dated 11.02.2013 and numbered 2012/12745 E., 2013/2608 K.; Mustafa ALP, Olumsuz İşyeri Uygulaması ile Bir İkramiyenin Kaldırılması, Prof. Dr. Hakan PEKCANITEZ’e Armağan,, Dokuz Eylül University Journal of Law Faculty, Volume 16, Special Issue 2014, pp. 3073-3091

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