Will the Personnel, Who will Use the Buyout Option for Military Service, Become Entitled to Severance Pay?

In the article 2 of the Law numbered 7146, which entered into force as published in the Official Gazette on 03.08.2018 and added the temporary article 55 into the Military Service Law numbered 1111, a new legal arrangement was introduced for the military service through payment.

Pursuant to the legal arrangement, the persons, who are obliged to do military service, however, who have not actually started to do their military service for whatever reason on the effective date of the statutory article and were born before 01.01.1994 (including that date) and are subject the Law numbered 1079 and the Law numbered 1111, shall optionally be deemed to have performed their military service provided that they have attended and completed the 21 days’ basic military training in accordance with the conditions determined. Furthermore, the following provision is contained in the third paragraph of the legal arrangement: “Those who benefit from the provisions of this article shall be deemed to have been granted unpaid leave or leave without salary by their employer workplaces, institutions and organizations for the period of the basic military training”.

In case the personnel exercise the right to unpaid leave as granted by the law, the rights and obligations arising from their employment contracts shall be suspended during their 21 days’ basic military training by operation of law, and they will resume working when they are back. In such case, it will not be possible for the employer to terminate the employment contract due to the personnel’s military service through payment. In case the employer terminates the personnel’s employment contract in spite of the law, the personnel shall become entitled to the indemnities that may arise due to the employer’s breach of the employment security-related provisions in case the conditions take place, as well as notice pay in case of the employer’s breach of notice periods and shall also become entitled to severance pay since the termination is not based on a justifiable reason.

The legal arrangement does not contain a provision on whether or not the personnel shall become entitled to severance pay or on whether or not the termination shall be deemed to be based on justifiable reason, in case the personnel wish to benefit from the provisions regarding the buyout option for military service by terminating the employment contract. Upon the legal arrangement entered into force, this issue was widely discussed by the public, however, a final conclusion could not be achieved.

Severance pay is regulated by the article 14 of the Labor Code numbered 1475, which article is still in force. In order for a laborer to become entitled to severance pay; it is, first of all, necessary that the laborer has worked for minimum 1 year at the workplace belonging to the employer. In addition, the employment contract of the personnel who has satisfied this condition must have terminated in such a way enabling entitlement to severance pay.

As per the article 14/3 of the Code numbered 1475, the personnel become entitled to severance pay in case they quit the employment due to military service as a regular soldier. In practice, military service as a regular soldier and military service through payment are assessed as the concepts that are different from each other. Military service through payment represents an arrangement containing the 21 days’ basic military training. It is not literally possible consider the 21 days’ basic military training as a regular soldier’s military service.

Since the issue is a recent one, there is currently no court decision or supreme court decision which would precisely constitute a precedent one.

However, the following verdict was established in an earlier decision rendered by the 9th Civil Chamber of the Supreme Court of Appeals in respect of the issue: “...Even though the temporary article 6/5 of the Law numbered 2338 introduces the rule that the employee shall be deemed to be on unpaid leave without salary for the period of his basic military training, there is no doubt that the aim of this rule is to provide an employment security for the employee. On the other hand, the amended article 14 of the Labor Code prescribes that severance pay shall be paid to those who quit the employment due to military service as a regular soldier. Since the plaintiff submitted his claim conditional upon the occurrence of this condition, it is not unlawful to review the merits of the claim and thus, to order the severance pay to which the employer becomes entitled”. In this decision, the Supreme Court of Appeals considers within the same category the personnel who benefit from military service through payment and the personnel who do military service as a regular soldier, and orders that the personnel shall become entitled to severance pay within the principle of interpretation in favor of the personnel.

The following objections were raised in a dissenting opinion pertaining to another decision rendered in 2015 by the Supreme Court of Appeals about the issue: “…In the light of the petition submitted by the plaintiff personnel to the defendant workplace, it is understood that the plaintiff personnel resigned due to military service as a regular soldier and claimed severance pay. It is also proven that the plaintiff filed his application for military service through payment 4 days after the resignation and did his military service through payment and was not recruited actually even for one day. Given the fact that the right granted by the article 14/1-3 of the Code numbered 1475 is intended for those who had to leave the workplace compulsorily in order to do military service actually, the personnel who are relieved of doing military service through payment of the relevant fee, instead of doing the military service actually, shall not enjoy this right. Therefore, the acceptance of the claim for severance pay is not a correct approach”.

Considering the above decisions rendered by the Supreme Court of Appeals and the principle of interpretation in favor of the personnel as adopted by the Labor Law, we are of the opinion that the personnel, who used the buyout option for military service by completing 21 days’ basic military training, shall become entitled to severance pay pursuant to the article 14/3 of the Code numbered 1475, since such personnel shall be deemed to have satisfied the condition “being recruited”.