The death of the employee constitutes one of the situations that automatically terminate the employment contract in Turkey. According to Article 440 of the Code of Obligations, since the employment contract in Turkey and the labour relationship are related to the person of the employee, the employment contract in Turkey is terminated without the need for any further action in the event of his death. In this case, the labour obligation of the employee arising from the employment contract does not pass to his heirs. Likewise, the employer has no right to claim this debt from the employee’s heirs.
This legal result also results in the non-payment of certain payments that are linked to the termination of the employment contract in Turkey for certain reasons. However, some special regulations have tried to overcome this disadvantage, and in the event that the employment contract in Turkey is terminated due to the death of the employee due to certain institutions or certain duties, it is possible for the heirs to have rights.
However, it is seen that these regulations have a disorganised structure in various laws in terms of the subject of each law. It is also necessary to pay attention to some features in the context of inheritance law. In this sense, it is of great importance to present these regulations as a whole and to associate the regulations with the inheritance law.
In our labour law system, payments due to the death of the employee are found in the Code of Obligations, Labour Law, Press Labour Law, Maritime Labour Law and Law on Private Security Services. In this context, it is seen that the payments expressed in this context include compensation under various headings. However, there are also payments that arise according to general provisions that are not specifically mentioned in these laws. These payments consist of wages and wage supplements or wage-like payments to which the employee is entitled.
Accordingto the aforementioned Article 440 of the Code of Obligations, in the event of the death of the employee, employers are obliged to make a payment to the surviving spouse and minor children or dependents of the employee in the amount of one month’s salary starting from the day of death, or two months’ salary if the service relationship has lasted more than five years. This obligation shall be fulfilled separately from severance pay.
Article 32 and the following articles of the Labour Law No. 4857 regulate the issues related to wages, especially in Article 32, wages are defined in general terms, and in the fifth paragraph of the article, it is stated that in the termination of the employment contract, it is obligatory to pay the employee’s wage and the benefits that can be measured in money arising from the contract and the law in full, and a special termination reason condition is not put forward for the payment of wages, employment contract in Turkey and benefits that can be measured in money arising from the law.
In the context of this regulation, since the wage is the equivalent of the days worked by the worker, the worker is a wage creditor for the unpaid work on the date of death. This receivable will be included in the estate like other receivables. As such, the bonus paid or promised to be paid in proportion to the working time of the worker, the premium paid due to seniority, the amount of sales made, the characteristics of the task undertaken and similar reasons, the gratuity and the like should be calculated for the period from the date of the last payment made in this direction until the date of death and should be included in the estate. The same issue can be argued for overtime labour wages. Indeed, it is a fact that the worker is entitled to overtime wages for the overtime work done until the date of death. Therefore, these entitlements should also be included in the account. The explanation made above is also valid for the increased wage that the employee is entitled to for a National Holiday and a general holiday and which must be paid to him in accordance with Article 47 of the Labour Law No. 4857.
However, if death prevents the realisation of this condition in a number of payments, the payment of which is subject to special conditions, there is no need to make a payment regarding these issues since the right has not yet arisen. For example, according to Article 46 of the Labour Law No. 4857, in order to be entitled to week holiday pay, it is required to have worked in accordance with the provisions of the law in the 6 working days preceding the week holiday day and to be deemed to have worked. On the other hand, there is no need to pay a wage item that will be paid for the day of rest, in other words, a wage item that is not equivalent to work, since the week holiday wage is a regulation created to ensure that the employee is not deprived of the right to rest – not to waive the rest period. The same issue should also be considered for the annual leave wage, which is required to be paid in accordance with Article 47 of the Labour Law No. 4857 and for which the condition of having worked for a certain period of time is sought.
The explanations on these issues are also valid for the wage institutions stipulated in the Law No. 5953 on the Regulation of the Relations between the Employees and Employers in the Press Profession and the Maritime Labour Law No. 854 in terms of similar or in-kind payments.
When it comes to the compensation to be paid in the event of the death of the employee and payments of this nature, the first issue that comes to mind is severance pay. The issues related to severance pay are regulated by Article 14 of the Labour Law No. 1475, Article 20 of the Maritime Labour Law No. 854 and Article 6 of the Law No. 5953 on the Regulation of the Relations between the Employees and Employers in the Press Profession. Article 14 of the Law No. 1475 and Article 20 of the Law No. 854 clearly stipulate that in the event of the death of the worker or seaman, the severance pay shall be paid to the legal heirs. However, there is no similar explicit provision in Article 6 of the Law No. 5953. Instead, Article 18 of the same Law provides for death indemnity and this indemnity is associated with severance pay in terms of amount.
According to the provisions of the relevant law, in order to be entitled to severance pay, the first condition for the payment of the severance pay to the heirs in case of death is that the employee (seaman) has completed 1 year of employment. In this case, if the worker has died before 1 year of employment in the workplace, there will be no right for his legal heirs since there is no severance pay. The term “one year” should be understood as a period of 365 days.
Compensation or any other payment of this nature is the payment of the wage of the annual leave that the employee is entitled to but did not use to his heirs in case of death. This issue is clearly stipulated in Article 59 of the Labour Law No. 4857, but there is no such provision in the Laws No. 5953 and 854. In fact, according to the sixth paragraph of Article 6 of the Law No. 5953, the payment of the unused annual leave wage upon the termination of the contract by the employer, and according to the seventh paragraph of Article 40 of the Maritime Labour Law No. 854, the payment of the unused annual leave wage in accordance with the 14th paragraph of the same law. II, III and IV of Article 14 of the same law, the inclusion of unused annual leave pay in the estate in the event of death, again taking into account these clear regulations and also the application of the provision of the law numbered 4857 as a general provision in this regard, since the Labour Law does not have the characteristics of a general law compared to these two laws, does not seem possible.
One of the other payments in the nature of compensation is found in Article 18 of the Law No. 5953. According to the article, in the event of the termination of the employment contract in Turkey due to the death of the journalist, the death indemnity in the amount of the seniority right, provided that it is not less than three months’ salary of the journalist, must be paid to the spouse and children, and in the absence of these, to other family members of the journalist. The seniority right specified in this article will be determined in accordance with Article 6 of the Law. The aforementioned article stipulates that in order to be entitled to severance pay, the journalist must have worked in the profession (in the profession of journalism, regardless of the fact of working for one or different employers) for at least 5 years. However, if it is taken into consideration that if the journalist works for 5 years, he/she will be entitled to a severance pay of 5 years and therefore a severance pay in the amount of 5 months’ salary, it is seen that the condition of not less than 3 months’ salary in the article regulation is unwarranted. The first paragraph of Article 6 explicitly stipulates that the right to seniority shall be recognized only if the journalist has worked in the profession for at least 5 years. According to these regulations, in the event of the death of a journalist who has worked in the profession for less than 5 years, it is not possible to pay death indemnity to the right holders listed in the article.
Another payment in the nature of compensation is stipulated by Article 15 of the Law No. 5188 on Private Security Services. According to the aforementioned regulation, a compensation to be calculated according to the principles in the employment contracts or collective labour agreements will be paid to the legal heirs of the security officers who die while performing the duties specified in the Law No. 5188. However, in accordance with the provision of the article, it is possible to award a higher amount of compensation in accordance with the general provisions, and if such a judgement is made by the courts, the payment made before should be deducted from this amount. Again, with the statement in the second paragraph of the article, the compensation to be paid accordingto this article is not associated with the compensation to be paid in accordance with the Labour Law No. 4857, and therefore, severance pay and unused annual leave pay are prevented from being evaluated within this compensation. In the provision of the law, an exception is made for the legal heirs of private security officers who die while performing their duties in public institutions and organisations, and it is stipulated that the higher of the compensation amounts specified in the employment contract in Turkey, collective bargaining agreement or the provisions of the Law No. 2330 on Cash Compensation and Monthly Attachment, whichever is higher, should be paid. Although the regulation in the law is clear for the private security officers working in the security units established by the relevant institution in public institutions and organisations according to the regulations in Law No. 5188, it is not clear whether the scope of the article covers the private legal entity employers who receive work through tenders based on the term private security. When the provisions of Law No. 2330 are evaluated, there is no clarity for private security officers. In this case, it is concluded that the provision of the article covers private security guards to be employed in private security units to be established by public institutions or organisations in accordance with the provisions of Law No. 5188.
In order for a payment to arise and be paid due to the death of the worker, a number of conditions must exist according to the provisions of the law from which the payment originates and the provisions of the Turkish Civil Code No. 4721.
The first of these is the death of the worker. Death is the termination of a person’s existence. In this respect, it can only be mentioned for real persons.
Secondly, according to the relevant legal provision from which the payment originates, it is necessary to have the right that requires payment. Therefore, as explained above, in the case of severance pay, the existence of at least one year of employment and similar conditions will be sought.
Another condition is the title of legal heir mentioned in the relevant laws. According to Article 495 et seq. of the Law No. 4721, the legal heirs are the heir’s descendants, parents, grandparents, children born out of wedlock, surviving spouse, adopted children and finally the state.
Additionally, as stipulated in Articles 514 and the following articles of the same law, a legal heir can also be made by the testament or inheritance contract by making a testamentary disposition of the heir. Article 505 of the Civil Code. According to Article 508. Accordingto Article 508, it is possible for the heir to dispose of the part of the inheritance other than the reserved months to be found for the heirs, parents or spouse through a will or inheritance contract. According to the same article, in the absence of the heirs, parents or spouse, such disposition may be made on the entire inheritance. In addition to these, in order to be a legal heir, it is necessary to be alive (Article 580-583), not to be excluded from inheritance (Article 510-514), not to have renounced the inheritance (Article 528-529) and not to be deprived of inheritance (Article 578).
The last point to be emphasised here is the non-rejection of the inheritance. Indeed, as regulated in Articles 605 et seq. of the Civil Code, rejecting the inheritance will also prevent the utilisation of the payments in question.
Failure to pay attention to the above-mentioned issues in the realization of a payment arising from the death of the employee may expose the employer to a second payment before other heirs. In this case, the most appropriate solution is for the employer to make the payment after seeing the certificate of inheritance. In the event of an unjustified payment, the employer will have to seek a solution according to the provisions of unjust enrichment for the extra payments made by the employer.