22.03.2023

Writers: Sema Çelebi, Nazlıgül Akdemir, Beyza Somuncu

In our legal system, intermittent work refers to the periods of work carried out by an employee in separate working periods within the same employer's workplace. If an employee's labor contract terminates in a way that qualifies for severance pay, and then the employee resumes work within the same employer’s workplace, the calculation of severance pay and annual leave entitlement from the previous period, as well as whether the prior period of service will be taken into account during the new working period, should be discussed.

v  The Effect Of Intermittent Work On Severance Pay:

The impact of intermittent work on severance pay is addressed in Article 14 of the repealed Law No. 1475, which is still in effect under Article 120 of the Labor Law No. 4857. Accordingly, the seniority of workers is calculated by considering the periods they have worked in the same employer's workplaces, regardless of whether the employment contract is intermittent or continuous. Therefore, the periods of intermittent work are combined when the labor contract terminates in a manner that qualifies for severance pay.

At this point, a binary distinction is made based on whether the employee has been compensated for the severance pay entitlement from the previous period.

1.   According to Article 14 of Law No. 1475, it is not possible to pay multiple severance pay amounts for the same period of service. Therefore, if an employee has already received severance pay for the previous employment period, the length of service from the previous period is not considered in the new working period, and it is assumed that the seniority period will start from zero.

For instance, when calculating the seniority of an employee who worked for 3 years in a workplace, received severance pay upon leaving, and later returned to work in the same employer's workplace, the first working period is not taken into account. To put it more clearly; if an employee worked for 3 years, received severance pay upon leaving, then returned to work in the same employer's workplace, and after working for another year, became eligible for severance pay upon the termination of the employment contract, the seniority of the employee is determined not as the total service period of 4 years, but solely based on the 1-year second working period

    2.   If the severance pay for the employee's previous period of work has not been paid at all or has been paid incompletely, then the service period of the first period is taken into account in the calculation of seniority, and the severance pay is calculated based on the final salary received by the employee at the end of the second working period. At this juncture, it is essential to not overlook that there is an exception with regard to the statute of limitations. If the time elapsed between the previous employment and the new employment period exceeds the statute of limitations, the seniority from the previous period will not be considered in the calculation.

For example, if an employee works for 1 year at a workplace, becomes eligible for severance pay but leaves without receiving it or receives it incompletely, and later returns to work in the same employer's workplace, working for an additional 6 months, their severance pay is calculated based on the total working period of 1 year and 6 months. In this case, the salary received by the employee during the second working period is taken into account. However, at this point, it's important to ensure that the time elapsed between the two working periods does not exceed the statute of limitations.

v  The Effect Of Intermittent Work On Annual Paid Leave Entitlement

When it comes to the entitlement of intermittent workers to annual paid leave, unlike in the case of severance pay, no distinction is made based on whether the entitlement has been settled. Pursuant to Article 54/1 of the Law No. 4857 and Article 4 of the Annual Paid Leave Regulation, for the calculation of the required period to be eligible for annual paid leave, the periods during which workers have worked in the same employer's workplace are combined.

The periods in which entitlement to leave is not granted due to not completing a year in the previous working period are also added to the subsequent work of the employee in the same employer's workplace to determine their annual leave rights. In fact, the Court of Cassation also issues decisions in line with this principle. For instance, if an employee works for 3 months at an employer's workplace, then leaves, and then returns to work at  workplacer and working for 9 months, the service periods from both periods are combined, allowing the employee to obtain the right to annual leave.

In cases where the employee works intermittently at the same workplace, it's important to emphasize that the previous period being terminated with the payment of severance pay does not hinder the consolidation of periods for leave entitlement. The Court of Cassation also highlights this aspect.

As a Result:

When determining the basis period for severance pay in intermittent work

Ø  If the severance pay for the previous period is paid, the seniority from this period will not be considered in the calculation of the new working period, and the seniority will start from zero.

Ø  If the severance pay for the previous period has not been paid or has been paid incompletely, when determining the length of service, the service periods from both periods are combined to calculate the total seniority.

When determining the basis period for annual paid leave in intermittent work 

Ø  Regardless of whether the annual leave entitlement earned in the previous period has been utilized or its compensation has been paid, the service period from the previous period is combined with the service period from the second working period for calculation.