Obligations of the employee in Turkey
The new law, like the old law, does not contain a special regulation stating that the service contract can be made as desired, provided that it is not contrary to the law or morality. Since this issue is already one of the basic principles of the Code of Obligations, there is no need to specify it for the employment contract.
After this, we can move on to the obligations of the employee in Turkey. The provisions of the Code of Obligations regarding the obligations of the employee in Turkey are not specifically regulated in the Turkish labour law.
The issues defined and regulated in these articles as the obligations of the employee shall also be valid in terms of private labour laws. Again, labour contracts should be regulated accordingly.
Obligation to work in person: Article 320 of the old law under the title of personal fulfilment and Article 395 of the new law. According to the regulation under the title of personal work obligation in Article 320 of the old law and Article 395 of the new law, the employee in Turkey is obliged to do the work personally, unless otherwise understood from the contract or the necessity of the situation.
Duty of care and loyalty: According to Article 321 of the old law under the title of duty of care and Article 396 of the new law. When the regulations under the title of duty of care in Article 321 of the old law and under the title of duty of care and loyalty in Article 396 of the new law are evaluated, it is seen that the new law includes the concept of loyalty to the employer in the duty of care compared to the old law, and thus, the concept of being loyal to the employer, which manifests itself in practice and finds expression in the decisions of the Court of Cassation, is enshrined in the new law. However, the prohibition to compete is a special case and comes into effect if the employer so wishes. 396. The debt expressed in Article 396 with the debt of loyalty is a situation that should be in all contracts and will be sought in possible cases. It is one of the minimum obligations undertaken by the employee with the employment contract. On the other hand, under the name of the duty of care and loyalty, a number of regulations that were not included in the old law are also included.
Accordingly, within the scope of the employee’s duty of care and loyalty;
– The employee is obliged to perform the work undertaken diligently and to act loyally in protecting the rightful interest of the employer.
– The employee is obliged to use the machinery, tools and equipment, technical systems, facilities and vehicles belonging to the employer in accordance with the procedures and to take care of the materials delivered to him for the performance of the work.
– As long as the service relationship continues, the employee may not provide services to a third party in return for remuneration in violation of the duty of loyalty, and in particular may not compete with his/her own employer.
– During the continuation of the service relationship, he/she may not use the information he/she learnt during his/her work, especially production and business secrets, for his/her own benefit or disclose them to others. To the extent necessary for the protection of the rightful interest of the employer, the employee is obliged to keep secrets after the termination of the service relationship.
Delivery and accountability obligation: This is an obligation that was not defined in the old law, but is defined in the new law with Article 397. Accordingly, the employee shall immediately deliver to the employer the things and especially the money received from the third party for the employer during the performance of the work undertaken.
Clarification of one or two situations that cause problems in practice in this regard means that the obligation of the employee to deliver and account for the labour contract, which has already been widely discussed and laid down by the decisions of the Court of Cassation, is put into legal expression.
Owing overtime work: In the old law, it was actually included in Article 329 with similar expressions. In the new Code of Obligations, it is regulated under Article 398. It is regulated in Article 398. First of all, overtime work is defined as work performed with the consent of the employee in Turkey and above the normal working time determined in the relevant laws. There is an obligation to fulfil a job that requires more work than the normal time. The worker must be in a position to perform the work. At the same time, if it is contrary to the rules of honesty to avoid it, it is ruled that the employee is obliged to fulfil the overtime work provided that he is paid for it, and the regulations in special laws are reserved.
Here, firstly, it is accepted that overtime work is a work performed with the consent of the employee in Turkey. Subsequently, as in the concept of compulsory overtime work in Article 42 of the Labour Law No. 4857, the regulation that overtime work will become an obligation in certain cases and reserving the provisions of special laws eliminates this understanding. It cannot be claimed that the overtime work obligation regulated in this article makes overtime work compulsory.
Obligation to comply with regulations and instructions: One of the obligations of the employee in Turkey, which was not mentioned in the old law, is regulated under Article 399 of the new law. Article 399 of the new law is the obligation to comply with regulations and instructions. It is possible for employers to make general regulations and give specific instructions regarding the performance of the work and the behavior of the employees in the workplace, and it has been made obligatory for the employees to comply with them to the extent required by the rules of honesty.
As in the case of the duty of loyalty, the duty to deliver and the duty of accountability, this issue consists of the legalisation of a situation that has been defined and defined by judicial decisions for a long time.
Employee’s responsibility: The issue regulated in Article 400 of the new law under the title of employee’s responsibility is actually a regulation containing almost the same expressions as the second paragraph of Article 321 of the old law under the title of care and does not include a new concept.
Accordingly, in general, the employee in Turkey is liable for any damage caused to the employer by his fault. However, in determining this liability; whether the work is dangerous or not, whether it requires expertise and training or not, and the abilities and qualifications of the worker, which are known or should be known by the employer, should be taken into consideration.
