Part-time employment is recognized where an employee’s
weekly working hours are determined to be substantially shorter than full-time
working hours. In practice, numerous problems arise where a part-time employee
performs work in excess of the agreed working hours. This article examines the
principles of part-time employment, work in excess of agreed hours in part-time
employment, and actions for determination of period of service in relation to
part-time employment.
Principles of Part-Time Employment
Part-time employment is set out under Article 13 of
the Labor Law. Accordingly;
“Where an employee’s normal weekly working hours are
determined to be substantially shorter than those of a comparable employee
employed under a full-time employment contract, the contract shall be deemed a
part-time employment contract.
An employee employed under a part-time employment
contract may not, solely on the grounds that the employment contract is
part-time, be subjected to differential treatment in comparison with a
comparable full-time employee, unless justified by objective reasons. The wages
and divisible monetary benefits of a part-time employee shall be paid
proportionately to the duration of work performed in comparison with a
comparable full-time employee.
A comparable employee is an employee employed
full-time in the same or a similar position at the workplace. In the absence of
such an employee at the workplace, a full-time employee performing the same or
similar work in a comparable workplace within the same line of business shall
be taken as the basis for comparison.
Where there is a suitable vacant position at the
workplace, requests by employees for transfer from part-time to full-time
employment or from full-time to part-time employment shall be taken into
consideration by the employer, and vacant positions shall be announced in due
time.”
Weekly working hours may be determined up to a maximum
of 45 hours. In part-time employment, however, such working hours must be
determined as less than 45 hours per week. According to the case law of the
Court of Cassation, working arrangements of 30 hours per week or less are
regarded as part-time employment.
“Under Article 13 of Labor Law Nr. 4857, an employment
contract in which the employee’s normal weekly working hours are determined to
be substantially shorter than those of a comparable full-time employee is
defined as a “part-time employment contract”. Working hours are set out under
Article 63 of the said Law as a maximum of 45 hours per week. Since the
aforementioned Article 13 refers to a comparable employee, the normal weekly
working hours to be taken as the basis in determining whether an employment
contract is part-time shall be assessed in comparison with a comparable
employee employed under a full-time employment contract. The weekly working
time prescribed under Article 63 of the Law constitutes the maximum limit.
Accordingly, the average weekly working hours of a comparable employee in the
relevant line of business should be determined, provided that such hours do not
exceed 45 hours per week, and it should then be assessed whether the agreed
working time has been reduced to a significant extent. Pursuant to Article 6 of
the Regulation on Working Hours related to the Labor Law, “work performed up to
two-thirds of the comparable full-time work carried out at the workplace shall
constitute part-time employment.” Although the wording “less than
two-thirds” was used in the justification, the Regulation provides that work
performed up to two-thirds of comparable full-time work shall be regarded as
part-time employment. Accordingly, where the normal working time, determined as
45 hours per week in comparison with a comparable employee, is agreed by the
parties as 30 hours or less, the existence of a part-time employment contract
may be recognized. The wages and divisible monetary benefits of an
employee working under a part-time employment contract shall be paid
proportionately to the duration of work performed in comparison with a
comparable full-time employee.” [1]
In part-time employment, the employee may not be
subjected to different treatment compared to a comparable full-time employee.
Unless there is an objective reason justifying differential treatment, no
change may be made to the terms and conditions of employment solely on the
ground that the employee works part-time. Indeed, the case law of the Court of
Cassation has also addressed the principles relating to this obligation of
equal treatment:
“It is stipulated under the Law that an employee
working under a part-time employment contract may not, in the absence of an
objective justification, be subjected to differential treatment solely on this
ground. It is possible for the employee to claim rights—such as wages and other
monetary entitlements—that are to be determined on a pro rata basis according
to the working time and remuneration of a comparable full-time employee.
Furthermore, Article 5 of Labor Law Nr. 4857 expressly subjects such
discrimination to sanctions; accordingly, it is also possible to claim
compensation for breach of the duty of equal treatment. Where the consequences
of discrimination do not relate to pecuniary or quantifiable benefits, only
compensation for breach of the duty of equal treatment may be awarded.
Although part-time employment is set out under the
Law, issues such as how seniority is to be determined, how employees are to
benefit from severance and notice entitlements, and the method of calculation
of such rights are not explicitly set out at the statutory level. These matters
have been clarified through judicial decisions. Accordingly, whether part-time
work is performed on certain days of the week or in the form of a few hours
each day, the Court of Cassation has held that severance pay entitlement and
vacation rights may arise after the employee completes one year as of the date
of commencement of work at the workplace (Decision, bearing the Basis number 2007/31462,
the Decision number 2008/108 and dated 12.02.2008,of the 9th Civil
Chamber of the Court of Cassation). The wage to be taken as the basis for
calculation must be the remuneration received by the employee for part-time
work. In addition, in relation to employees working under a part-time
employment contract, the notice period must be determined based on the total
duration of the employment relationship between the date of commencement and
the date on which termination is intended.” [2]
Work in Excess of Agreed Hours in Part-Time Employment
Under the Labor Law, the weekly working time is set at
45 hours, and work exceeding 45 hours per week is regarded as overtime. In
part-time employment, where the weekly working time is determined to be less
than 45 hours, work exceeding the agreed working time but not exceeding 45
hours is defined as work in excess of agreed hours.
“The claimant, in this present case, asserted that
following the first lawsuit, he continued to be employed under the same working
arrangement from 08.08.2008 until the termination of the employment contract,
and therefore claimed outstanding wage differences and bonus entitlements. The
court accepted that, due to the claimant being required to work more than 30
hours per week after 08.08.2008, he was deemed to have been employed on a
full-time basis. Considering the constituent effect of the first
judgment, and assuming the acceptance of full-time employment, there should be
no difference in terms of the amount of wage entitlement arising from the
claimant’s employment between 30 and 45 hours per week. However, the reversal
of the first judgment awarding wage differences on the grounds that “the
claimant failed to prove with concrete evidence that he worked at least 45
hours every week, and since wages are paid in consideration of work performed,
the acceptance of full-time employment does not necessarily mean that the
claimant worked at least 45 hours every week” is based on a material error.
Compliance with this reversal does not constitute a procedural vested right in
favor of the defendant. On the contrary, it is clear that the first judgment,
which created a constituent effect, constitutes a procedural vested right in
favor of the claimant. For an employee who is required to be employed on
a part-time basis, being made to work in excess of 30 hours per week entails
the legal consequence of being deemed to have been employed on a full-time
basis. Accordingly, it must be accepted that the employee is entitled to the
weekly wage corresponding to 45 hours, regardless of whether 45 hours were
actually worked. It is not appropriate for the court to dismiss the
claim for wage differences by complying with our reversal decision, which is
based on a material error. For this reason, the decision must be reversed.” [3]
According to the case law of the Court of Cassation,
where part-time employees are required to work in excess of the agreed working
hours and such practice becomes continuous, there is a risk that the employee
may be deemed to be employed on a full-time basis. As a rule, the burden of
proof that the employee was consistently required to work beyond the agreed
part-time working hours rests with the employee.
Actions for determination of period of service in
part-time employment
Where an employee working under a part-time employment
contract is regularly required to work in excess of the agreed hours, and as a
result social security contributions are not fully paid, an action for determination
of period of service may be brought for the purpose of establishing the actual
duration of employment. Although the burden of proof regarding work performed
beyond the agreed part-time hours is generally considered to rest with the
employee, the case law of the Court of Cassation indicates that, due to the
public order nature of the actions for determination of period of service, the
principle of ex officio examination prevails to a greater extent.
Therefore, the burden of proof is not assigned exclusively to one party in a
strict manner.
“Paragraph 1 of the Provisional
Article 7 of the Social Insurance and General Health Insurance Law provides
that: “Until the effective date of this Law, insurance commencement dates and
service periods under Law Nr. 506 dated 17/07/1964, Law Nr. 1479 dated
02/09/1971, Law Nr. 2925 dated 17/10/1983, Law Nr. 2926 dated 17/10/1983
repealed by this Law, Law Nr. 5434 dated 08/06/1949, and under the funds
subject to Article 20 of Law Nr. 506 dated 17/07/1964, as well as periods of
actual service increment, deemed service periods, borrowed and reinstated
periods, and insurance periods, shall be assessed in accordance with the
provisions of the respective laws to which they are subject.”
In this respect, in disputes
concerning the determination of service periods prior to 01.10.2008, the
provisions of the repealed Law Nr. 506 shall apply; whereas for the period
after this date, the provisions of Law Nr. 5510 shall apply.
Paragraph 10 of Article 79 of the
repealed Law Nr. 506 provides that: “If the documents set out under the
Regulation are not submitted by the employer, or if the insured person cannot
be identified by the Institution, insured persons may prove their employment by
applying to the court within 5 years starting from the end of the year in which
their services were rendered, and if they are able to establish their service
through a court judgment, the total monthly earnings and the number of premium
payment days stated in the court decision shall be taken into account.” Paragraph
9 of Article 86 of Law Nr. 5510 contains a provision in the same direction.
On the other hand, individuals who are
employed shall be deemed insured ex lege upon the fulfilment of the conditions,
as set forth under the Law. However, such persons must not fall within the
statutory exceptions provided therein. The acquisition of insured status
without the need for any further procedural act follows from Articles 4 and 92
of Law Nr. 5510.
However, the existence of
actual work is a prerequisite for the establishment of insured status. Unless
the existence of genuine and factual employment is established, it is not
possible to speak of insured status.
At this stage, it is
necessary to examine the evidence and factual circumstances through which the
existence of actual work is to be established.
Considering that social security law
has characteristics falling within both public law and private law, it is
observed that the principle of ex officio examination prevails
particularly in actions for determination of service periods. Indeed,
actions for determination of service periods fall outside the scope of the
adversarial principle and are subject to the principle of ex officio
investigation; therefore, in such cases, the burden of proof cannot be
attributed exclusively to one party.
Since the existence of work activity may be proven by any kind of evidence, in such cases it is necessary to make use of the employment records required to be kept at the workplace as well as documents and evidence held by the Institution, and to obtain payroll records. It should also be investigated whether any labor inspector reports exist. Where possible, individuals who may have knowledge of the workplace during the relevant period—such as managers and employees of the workplace, as well as persons working in neighboring or nearby workplaces—should be identified through law enforcement authorities and heard as witnesses. In addition, statements should be taken regarding the position in which the insured person worked, the duration of work, the nature of the work, and whether the work was continuous, intermittent, or seasonal, as well as the start and end dates of employment and the wages received. While evaluating witness testimony, particular attention should be paid to its credibility, including how the witnesses acquired such information, their relationship with the employer, employee, or workplace, and the reliability of long-term recollections. It should also be considered how such extensive information could be accurately retained in human memory over many years, and the statements should be corroborated by other supporting evidence.” [4]
Conclusion
In conclusion, part-time employment relationships
require the establishment of a delicate balance between contractual freedom and
the principle of employee protection in labor law practice. In particular,
where the limits of part-time work are exceeded in practice and such a
situation becomes continuous, a reassessment of the legal nature of the
employment relationship becomes inevitable.
Action for determination of period of service has a
legal nature that differs from classical employment-related claims. This is
because such an action concerns not only the individual interests of the
parties, but also directly affects public order and the sustainability of the
social security system.
For this reason, the procedural and evidentiary regime
applicable to actions for determination of service periods differs
significantly from that applicable to employment-related claims. In wage and
other labor receivable disputes, the adversarial principle generally applies,
and the burden of proof rests, as a rule, on the party asserting the claim. By
contrast, in actions for determination of service periods, the judge is obliged
to act within the framework of the principle of ex officio examination
to uncover the material truth. In this context, relying solely on the
employee’s allegations and the evidence submitted by them may lead to results
contrary to the very purpose of such proceedings.
Indeed, in actions for determination of service
periods, the existence of actual work may be proven by any kind of evidence;
workplace records, payroll documents, institutional records, labor inspector
reports, and witness statements must be assessed together in a holistic manner.
Otherwise, an assessment based solely on the parties’ statements may lead both
to unjust acquisition of insured status and to the disregard of genuine
employment relationships.
In this context, in disputes arising from part-time
employment relationships, the function of the action for determination of
service periods must be properly understood; it should be borne in mind that
this action is not a “claim for receivables,” but rather a sui generis type of
proceeding aimed at the accurate determination of insurance periods and premium
payment days. Accordingly, judicial authorities are obliged to conduct a
comprehensive inquiry capable of revealing the objective truth, without being
confined solely to the employee’s allegations.
Ultimately, actions for determination of service
periods play an important role in preventing the abuse of part-time employment
and ensuring that employees are included in the social security system in
accordance with their actual working time. The proper fulfilment of this
function is only possible through the effective application of the principle of
ex officio examination and a holistic evaluation of the evidence.
Att. Şeymanur Elmas
References:
1. Decision,
bearing the Basis number 2015/24276, the Decision number 2018/3224 and dated 19.02.2018,
of the 9th Civil Chamber of the Court of Cassation
2. Decision,
bearing the Basis number 2015/24276, the Decision number 2018/3224 and dated 19.02.2018,
of the 9th Civil Chamber of the Court of Cassation
3. Decision,
bearing the Basis number 2016/6944, the Decision number 2016/8814 and dated 11.4.2016,
of the 9th Civil Chamber of the Court of Cassation
4. Decision,
bearing the Basis number 2022/10-1241, the Decision number 2024/9 and dated 24.01.2024, of the
General Assembly of Civil Chambers of the Republic of Türkiye
