What is a Contract of Service?
A contract of service is regulated in Article 8 of the Labor Law No. 4857 as follows:
“An employment contract is a contract in which one party (the employee) undertakes to perform work in a dependent manner, and the other party (the employer) undertakes to pay wages.”
As understood from the provision of the law, documents in which the employee undertakes to perform work in a dependent relationship to the employer, and the employer undertakes to pay wages in return for this work, are referred to as employment contracts.
Effects of the Worker’s Death on the Employment Contract
In Turkish law, the performance of work is a personal obligation closely tied to the individual, where the personal characteristics of the worker come to the forefront. Therefore, such an obligation cannot be transferred to the heirs.
What is the Right to Compensation in the Event of the Worker’s Death?
In the event of the worker’s death, there are two important types of compensation that may arise:
- Severance Pay
Severance pay is a statutory payment that the employer is required to provide based on the employee’s past service. In this regard, although severance pay is compensation earned by the employee through continued work, in the event of the employee’s death it may also be claimed by the legal heirs. Accordingly, the statute of limitations for severance pay is 5 years. - Death Compensation Death compensation, on the other hand, is regulated under Article 440 of the Turkish Code of Obligations as follows: “The contract terminates automatically upon the death of the employee. The employer is obliged to make a payment equal to one month’s wage to the surviving spouse and minor children of the employee, or, if none, to the persons whom the employee was obliged to support, starting from the date of death; and if the employment relationship has continued for more than five years, an amount equal to two months’ wages.” In essence, this is an obligation of the employer to make a payment to certain persons in the event of the employee’s death. In practice, although this payment is not expressly defined as compensation, it is referred to as “death compensation.” The statute of limitations for death compensation is 10 years.
Frequently Asked Questions
1.To Whom Is Severance Pay Paid in the Event of the Worker’s Death?
As mentioned above, in the event of the worker’s death, the right to claim severance pay passes to the legal heirs. Accordingly, death compensation must also be paid to the worker’s surviving spouse and children. However, if these do not exist, the death compensation is paid to the persons whom the worker was obliged to support.
2.How Is Severance Pay Calculated in the Event of the Worker’s Death?
In the event of death, the amount of severance pay varies depending on the worker’s length of service. In this regard, severance pay corresponds to the total of 30 days of the employee’s gross “inclusive” wage for each year worked. In addition, when calculating the inclusive gross wage, the employee’s last year before leaving the job is taken into account as important.
3.Can Death Compensation and Severance Pay Be Received at the Same Time?
As mentioned, since death compensation and severance pay are separate legal concepts, it is considered possible to receive both types of compensation at the same time.
4.Does the Worker’s Death Caused by an Occupational Accident Due to Their Own Fault Eliminate the Right to Severance Pay?
It should be noted that the worker’s death as a result of an occupational accident caused by their own fault does not constitute an obstacle to the legal heirs’ entitlement to severance pay.
Some Court of Cassation Decisions Regarding Compensation Rights in the Event of the Worker’s Death
- “For the reasons explained; in terms of the present dispute, in view of the explicit provision set forth in the Maritime Labour Act, overtime wages must be calculated with a 25% increase. It is understood that Article 402 of the Turkish Code of Obligations, which entered into force later, cannot be applied to employees subject to the Maritime Labour Act. Therefore, the seafarer’s overtime wages must be calculated with a 25% increase and adjudicated accordingly. In this respect, while the claims for the difference in overtime wages should have been rejected, issuing a judgment in favor as written is erroneous. On the other hand, although the case was decided in accordance with the prior decision of our Chamber; following the closure of the 22nd Civil Chamber of the Court of Cassation and the establishment of the 9th Civil Chamber, it should also be taken into account that, pursuant to the principle decision adopted in September 2020, claims seeking overtime wages calculated with a 50% increase for workers subject to the Maritime Labour Act must be rejected. Accordingly, due to such rejection, attorney’s fees and litigation costs should not be awarded in favor of the defendant.” (Court of Cassation, Civil Chamber, Decision dated 11.10.2021, Case No. 2021/9060, Decision No. 2021/14011)
- “In this context, considering that the plaintiffs are the spouse and minor children pursuant to Article 440 of the Turkish Code of Obligations No. 6098, and taking into account the decedent’s length of service, this claim should have been awarded in the amount of one month’s wages; however, the court’s erroneous assessment and decision to reject the claim for death compensation was not appropriate. Therefore, taking into account the calculation in the expert report dated 30.08.2021, which formed the basis of the judgment, and the plaintiffs’ counsel’s amendment petition, the death compensation should have been accepted and awarded in the amount of USD 7,639.29. 4- As for overtime, weekly rest, and public holiday claims: although the workplace was a construction site abroad, all of the plaintiffs’ witnesses heard were neighbors/relatives and did not have firsthand observational knowledge. Likewise, considering the message contents submitted as annexes to the complaint petition, there are no concrete data regarding the determination of the decedent’s actual working conditions (such as start time, end time, breaks, public holidays, or weekly rest work). The messages mainly consist of certain complaints made between the decedent and his spouse and do not contain sufficient information to establish the working conditions. The decedent’s statement that he worked extensively cannot, by itself, be deemed sufficient for calculation. Therefore, the available data is insufficient to determine the actual working conditions and duration (i.e., concrete data necessary for calculation), making it impossible to rely on such evidence. Although the court based its decision on the testimony of a witness (who was also the decedent’s sibling), on the grounds that this witness went to the workplace to retrieve the body and thus had firsthand knowledge regarding working conditions and duration, the reason for the witness’s presence at the workplace was solely to collect the deceased’s body. This constitutes an incidental and temporary circumstance, and it is not consistent with the ordinary course of life to expect that, during such a process, the witness could make reliable determinations regarding the working conditions and duration at the workplace, or that such observations could be accepted as calculation data. Therefore, the witness’s statements should be approached with caution, and since they are not sufficient for calculation, they cannot be relied upon. As a result, since the plaintiffs, who bear the burden of proof, failed to establish that their decedent worked overtime or on weekly rest days and public holidays, the claims for overtime, weekly rest, and public holiday pay should have been rejected. Instead, awarding these claims based on an erroneous evaluation was not appropriate.” (Court of Cassation, 9th Civil Chamber, Decision dated 08.12.2022, Case No. 2022/12166, Decision No. 2022/16303)
- “In the present case, since it cannot be expected from the plaintiff employee to know all the components of the wage to be used as the basis for calculating compensation and employment-related receivables, no error was found in filing the case as an indeterminate claim (partial performance, full determination action). 2- The failure to fully and timely pay employee wages grants the employee the right to terminate the contract for just cause under Article 14/II-a of the Maritime Labour Act No. 854. Full payment of wages is essential. The employer cannot underpay the employee’s wages, nor can any deductions be made without written consent. Within the scope of Article 14/II-a of the Maritime Labour Act No. 854, the term “wage” should be interpreted in a broad sense. Failure to pay entitlements such as bonuses, premiums, fuel allowance, clothing allowance, overtime pay, weekly rest pay, and public holiday pay also grants the employee the right to terminate for just cause (Court of Cassation, 9th Civil Chamber, 16.07.2008, Case No. 2007/22062, Decision No. 2008/16398). In order to consider wages unpaid, the wage payment period determined by law or contract must have arrived, and the employee must have earned the right to that wage. The fact that the wage was not paid due to the employer’s financial difficulties does not affect the outcome. The employee’s ability to receive part of their wage from the Wage Guarantee Fund provided under Article 33 of the Labour Law also does not eliminate the employee’s right to terminate. The non-fulfilment of in-kind benefits arising from an individual employment contract or collective bargaining agreement (such as food aid or coal assistance) should also be evaluated within this scope, and the employee’s right to terminate for just cause should be recognized. In this context, as it is understood from the case file that the plaintiff had unpaid overtime and national holiday/public holiday receivables, it is concluded that the plaintiff employee’s termination was based on just cause, and there is no error in awarding the plaintiff’s claim for severance pay.” (Court of Cassation, 9th Civil Chamber, Decision dated 31.05.2022, Case No. 2022/6018, Decision No. 2022/6890)
- “On the other hand, it is undisputed that the Labour Act is a special law, while the Turkish Code of Obligations is a general law. In cases where there is a gap in the special law, the provisions of the general law may undoubtedly be applied. However, with regard to the method of calculating overtime wages, there is no gap in the Labour Act, and it is explicitly stipulated that the calculation shall be made with a 25% increase. The provisions of the Turkish Code of Obligations concerning service contracts are, as a rule, applicable to employment contracts that fall outside the scope of other labour laws. Apart from this, it is also accepted that the rules governing matters not regulated in other labour laws may be applied due to its nature as a general law. For example, the protection of the employee’s personality is not regulated in labour laws; therefore, Article 417 of the Turkish Code of Obligations may be applied as a general provision of the general law. Likewise, the death compensation provided under Article 440 of the same Code is regulated separately from severance pay set out in other laws, and since entitlement is determined independently of a certificate of inheritance, it may be applied directly as a provision of the general law.” (Court of Cassation, 9th Civil Chamber, Decision dated 20.11.2018, Case No. 2018/5567, Decision No. 2018/20999)
ANTALYA LABOUR LAWYER – ANTALYA EMPLOYMENT LAWYER
Compensation rights in the event of the worker’s death are of great importance under both labour law and social security legislation. In deaths resulting from occupational accidents or occupational diseases, compensation for loss of support and moral damages may be claimed depending on the employer’s fault. In this process, it is highly important to work with a specialized Antalya lawyer in order to avoid loss of rights. An experienced employment lawyer thoroughly analyzes the legal aspects of the occupational accident and ensures that all legal rights of the heirs are claimed in full. In particular, obtaining professional legal support plays a critical role in properly managing the litigation process, as well as in the accurate evaluation of expert reports and fault ratios.
