a) Making: The employment relationship established between the journalist and his/her employer is based on a service contract. This contract gives the employer the right to demand services from the opinion worker in the type of work specified in the contract. Thus, it determines the employee’s field of service and eliminates the possibility for the employer to demand services outside this field from the opinion worker. On the other hand, it obliges the press worker to perform his/her work in good faith and with due diligence as long as he/she remains within the framework of the contract (Orman 2000: 6).
a) Performance:
The employment relationship established between the journalist and his/her employer is based on a service contract. This contract gives the employer the right to demand services from the opinion worker in the type of work specified in the contract. Thus, it determines the field of service of the employee and eliminates the possibility for the employer to demand services outside this field from the opinion worker. On the other hand, it imposes an obligation on the press worker to perform his/her work in good faith and with due diligence as long as he/she remains within the framework of the contract (Orman 2000: 6).
Article 4 of the Press Labor Law stipulates that the employment contract must be in writing (Art. 4/1). In addition, the points that should be included in the written contract are explained as follows: In the written contract;
1-Type of work,
2-The amount of the fee,
3-The seniority of the journalist must be included (Art. 4/2).
4-The percentage by which the journalist’s salary will be increased at the end of two years of work must be clearly indicated in the contract.
In the event of a change in the type of work or wage, it is obligatory to include these matters in the contract (Art./3).The employer who fails to fulfill these obligations is subject to a fine (Art. 26).
The conclusion of a press employment contract shall be notified by the employer; its termination shall be notified by the terminator to the Regional Directorate of Labor, the local authority and, if the journalist is a member, to his/her union, if not, to the professional organization with the highest number of members, with a declaration within fifteen days. The declaration shall be immediately notified to the ministry by the local authority to determine the seniority of the journalist. Similarly, it is obligatory for employers to notify in writing, in person or by registered letter, the number of employees in the periodical publication to the authority in charge of the implementation of the labor law for the locality where that workplace is established.
b) Termination
b-a) Termination of the Contract by the Idea Worker
A non-fixed-term contract may be terminated by the journalist by way of notice. For this purpose, the journalist must give written notice to the employer at least one month in advance. The law does not grant any rights to the journalist in this case. However, if the journalist does not wish to work at the workplace for another month, he/she may immediately terminate the contractual relationship by paying the employer a compensation equal to one month’s salary. Although the said notice period can be extended by contract, it cannot be shortened. (İçel/ünver Mass Communication Law, Istanbul 2009, p222
b-b) Termination of the Contract by the Employer
Pursuant to Article 6 of the law, the employer may terminate the contract provided that certain notice periods are observed.
*3 months for termination of the contract of opinion workers with at least 5 years of service
*The notice period for the termination of contracts of journalists with less than 5 years of service is 1 month.
Periods above the aforementioned notice periods can be determined in the contract. However, notice periods less than these periods cannot be determined. If the employer does not want to comply with the notice periods, he/she may terminate the contract by paying the amount of wages equivalent to the notice periods to the journalist as compensation.
According to Article 11, the employer has the right to terminate the contract without having to comply with the notice period. Paragraph 3 of Article 11 states that “the fact that the journalist intentionally or as a result of gross negligence of the journalist in matters related to the performance of his/her duty performs acts and actions that may damage the reputation or fame of the newspaper is considered as a serious reason that gives the employer the right to terminate the employment contract immediately without waiting for the notice period. It states. For this reason, no right to compensation arises in the event of termination of the employment contract.
b-c) Termination of the Contractual Relationship for Other Reasons
In fixed-term press employment contracts, the contractual relationship ends upon expiration of the term. Here, the law does not grant any right of claim to the opinion worker.
Article 17 of the Law stipulates that if the publication of a newspaper is suspended for any reason whatsoever, the employees shall receive their wages for two months from the date of suspension. After the expiration of this period, the contract shall be deemed terminated. According to the same article, in this case, journalists will be paid their compensation first. This compensation will be calculated according to Article 6.
In the event of the death of a journalist, his/her spouse and children, or in their absence, his/her dependent family members, shall receive a death indemnity equal to the seniority right of the deceased journalist, but not less than three times his/her monthly salary. This compensation is not severance pay, but a death indemnity determined according to seniority rights. Accordingly, the date of the employee’s entry into the profession should be taken into account when calculating this compensation. Failure to pay the death indemnity will result in a heavy fine. The legal relationship between opinion workers and employers according to our press law iü volume xxxvııı-issue1ı p97)
b-d) Termination of the Contract by Agreement of the Parties
The parties to the press employment contract, the journalist and the employer, can terminate the contract at any time if they agree. It does not matter whether the contract is for a definite or indefinite term.
b-e) Spontaneous Termination of the Contract
Unless otherwise agreed, fixed-term press employment contracts terminate automatically upon expiration of the term without the need for a notice of termination (Art. 338 of the Code of Obligations). In such an automatically terminated contract, the law does not give the journalist any claim against the employer. According to Article 339 of the Code of Obligations, if the journalist continues to work and the employer continues to employ the journalist despite the expiration of the term specified in the contract, the contract is renewed for the same period but for a maximum of one year. If the contract is renewed for a second time in the same manner, the contract should be considered indefinite from the beginning and the relevant termination rules should be applied. If the publication is suspended for any reason whatsoever, the employees receive their wages for a period of 2 months from the date of the suspension (Article 17/4 of the Press Labor Law). At the same time, Article 17 states that the compensation of journalists shall be paid preferentially. According to paragraph 1 of Article 347 of the Code of Obligations, in the event of the death of a journalist, the press employment contract is terminated. According to paragraph 2 of Article 347, the death of the employer does not automatically terminate the contract (Şakar 2002: 94).
b-f) Immediate Termination During the Probationary Period
The probationary period for first-time journalists is a maximum of three months. During this period, the parties may terminate the employment contract without notice and without compensation (Art. 10/1).
b-g) Procedure in Termination of Contract and Objection to Termination
According to Article 19 of the Labor Law No. 4857, the employer must give the termination notice in writing and state the reason for termination clearly and precisely. An employee’s indefinite-term employment contract may not be terminated for reasons related to that employee’s behavior or productivity without obtaining his/her defense against the allegations against him/her. According to Article 20 of the Labor Law, an employee whose employment contract is terminated may file a lawsuit in the labor court within one month from the date of notification of the termination notice, claiming that no reason was given in the termination notice or that the reason given was not valid. If there is a provision in the collective labor agreement or if the parties agree, the dispute shall be referred to a special arbitrator within the same period. The burden of proof is on the employer to prove that the termination is based on a valid reason. The case shall be concluded within two months according to the expedited procedure. In case of appeal of the court’s decision, the Court of Cassation shall render a final decision within one month. (http://edergi.marmara.edu.tr/maruid/article/viewFile/5000013310/5000013627-13/03/2015 p:21.00)
b) Consequences of Invalid Termination
According to Article 13/D of the Law No. 4773 on Job Security; when the employer does not show a valid reason or the court determines that the reason shown is not valid and decides that the termination is invalid, the employer is obliged to reinstate the employee within one month. If the employer does not reinstate the employee within one month upon the employee’s application, the employer shall be obliged to pay the employee compensation amounting to at least six months and at most one year’s salary. When the court decides that the termination is invalid, it also determines the amount of compensation to be paid if the employee is not reinstated. The employee shall be paid his/her wages and other rights up to a maximum of four months for the period during which he/she is not employed until the finalization of the court decision. If the wage for the notification period is paid to the employee in advance, this amount shall be deducted from the payment to be made according to the above provisions. If the worker has not been given a notice period or the wage for the notice period has not been paid in advance, the wage amount for these periods shall be paid separately. The worker must apply to the employer to start work within six working days following the notification of the finalized court decision. If the employee does not apply within this period, the termination made by the employer shall be deemed a valid termination and the employer shall be liable only for the legal consequences thereof. The provisions of the first, second and third paragraphs cannot be amended in any way by contracts; any contractual provisions to the contrary are invalid.(http://edergi.marmara.edu.tr/maruid/article/viewFile/5000013310/5000013627-13/03/2015 p:21.00)
c) Legal Consequences of Contract Termination
c-a) Notice Indemnity:
It is an indemnity paid to the journalist in the event of termination of the contract by the employer and arises due to the termination of the contract. In the calculation of this compensation, the date of the journalist’s employment is not important. The date on which the journalist started working at that workplace is taken as the basis and the compensation is paid based on the last wage received. If the employer is unable to pay the compensation at once due to financial impossibilities, he may pay the compensation in 4 installments before the end of one year (Özek 1962: 94).Paragraph 7 of Article 6 states that “the journalist whose service is terminated in accordance with the provisions of this article shall be given compensation in the amount of one month’s salary for each year of service or fraction thereof for each year of service or fraction thereof to which the contract whose termination is notified is related, taking his last salary as the basis. However, less than six months of annual service shall not be taken into account. This amount is not calculated in the first contract year”. In the calculation of this compensation, which will be calculated as termination indemnity, the date on which the journalist entered the workplace will be taken as the basis and the compensation will be paid as much as the amount to be found over the last salary. Thus, journalists who have worked in the profession for at least 5 years will receive severance pay, which will be calculated from the date of their first entry into the profession and does not cover the period of service at their last workplace, as well as termination pay, which will be calculated over the period of employment at their last workplace. In this second type of compensation, since the opinion worker is not required to work at least 5 years in the profession, journalists who have not completed 5 years can also benefit from this right, but they will not be able to request severance pay.( İçel/ Ünver mass communication law Istanbul 2009 p,224
c-b) Death Compensation:
In the event of termination of the employment contract due to the death of a journalist, Article 18 of the Law No. 5953 stipulates that the deceased journalist’s spouse and children, and in the absence of these, the members of his/her family whose livelihood depends on him/her, shall be paid a death indemnity in the amount of the seniority right, which shall not be less than three times the monthly salary of the deceased journalist (Göktaş and Çil 2003: 253).While the death indemnity was previously a separate indemnity that was not related to the severance indemnity, with the amendment made, it is stated that one of the situations in which the severance indemnity will be paid is the death of the journalist. In the Collective Labor Agreements, in addition to severance pay to be paid to the beneficiaries in case of death, it is also emphasized that the employer should pay funeral expenses and death benefits (Şakar 2002: 107, 108).
c-c) Severance Pay:
Severance pay is a sum of money that must be paid as a legal obligation by the employer to the journalist who has worked for a certain period of time and whose contract is terminated for one of the reasons specified by law, or to his/her beneficiaries in the event of his/her death. In the Press Labor Law, the concept of “seniority right” is also used together with the concept of “severance pay”. This situation causes different debates. One of the regulations on severance pay for journalists is found in Article 6 and the other in Article 11 of the law. While Article 6 stipulates the termination of the contract by the employer, Article 11 regulates the termination of the contract by the journalist (Korkmaz 2004: 58).
Aaa – Conditions for Eligibility for Severance Pay
Journalists who have worked in the profession for at least 5 years are entitled to seniority (Art. 6/1). The seniority of the journalist for severance pay is calculated from the date of his/her first entry into the profession (Art. 6/2). This date is determined according to the records in the registry of the Prime Ministry General Directorate of Press, Publications and Information, where the information in the declaration submitted by the employer pursuant to Article 9 is entered (Şakar 2002: 109, 110). Article 6 of the Law considers the entry into service of the journalist as the basis for severance pay. In this case, if a journalist works for 25 years in one workplace and five years in another workplace, the employer will pay compensation for 30 years in the event of termination of the contract. The employer who pays the compensation for these thirty years can apply to the previous workplaces to pay their shares in this compensation. In other words, he has the right of recourse. Time spent not working or working in another profession should not be counted towards seniority. Unless there is a record in the registry proving otherwise, it is accepted that the journalist has continued to work continuously. The trial period is also included in the seniority of the journalist. The 5-year period required by the law is reduced to 1 year by collective labor agreements (Şakar 2002: 110, 111).
Bbb – Amount and Calculation of Severance Pay
The wage, which is a determining factor in the calculation of severance pay, is the last wage at the date of termination of the contract. The wage mentioned in Article 6 of the Press Labor Law is not the so-called “dressed wage” but the “basic” (root) wage at the date of termination.
There is no problem in the calculation of severance pay based on the last wage. However, there are some problems in practice as to what this last wage is, and while some employers consider this wage as the last wage in the payroll, the Court of Cassation accepts that this is the real wage that is not reflected in the payroll. As it is common in practice, the amount of wages on the payroll and the wages actually received by the employee are different, and some malicious employers keep unrealistic records in order to alleviate their obligations. In the decision of the Court of Cassation, it was ruled that the wage in the payroll, which does not reflect the truth, cannot be taken as a basis in the calculation of severance pay (Korkmaz 2004: 63, 64).
A journalist whose employment contract is terminated in such a way that he/she is entitled to severance pay shall be given compensation in the amount of one month’s salary for each year of service or fraction thereof related to the terminated contract, based on his/her last salary. However, less than six months of annual service shall not be taken into account (Art. 6/2) (http://www.isguc.org/ahmet1.htm 14/03/2015 at:22).
The Press Labor Law does not impose a ceiling on the calculation. In the calculation of severance pay, only the time worked in the journalism profession within the scope of the Press Labor Law No. 5953 will be taken into account. The time spent as a laborer or within the exceptions of the Press Labor Law is not taken into account in the calculation of severance pay (Göktaş and Çil 2003: 57).
Ccc – Payment of Severance Pay
Severance pay is paid at once and immediately. If the employer is unable to pay the severance pay at once due to financial difficulties, the payment shall be made in maximum 4 installments upon the decision of the tax office to which the workplace is affiliated that the enterprise is loss-making, and the duration of all of these installments cannot exceed one year (Art. 6/last)
9th Court of Cassation, 27.09.2000. E.8155, K.12627, it was stated that the highest bank deposit interest cannot be applied to the severance pay to be paid to journalists, and that there is no such provision in the Press Labor Law. The journalist who is entitled to receive severance pay may receive his/her receivable together with legal interest after sending a notice to the employer and causing him/her to default, 9th Court of Cassation, 10th H.D. 10.10.2001. E.12273, K.15701 (Korkmaz 2004: 66).
c-d) Compensation arising from the Employment Security Provisions
Article 6 of the Press Labor Law has been amended by Article 116 of the Law No. 4857 in order to apply the provisions on job security to intellectual workers by analogy, and Articles 18, 19, 20, 21 and 29 of the Labor Law have been made applicable to the Press Labor Law by analogy. Thus, guarantees have been introduced for both individual dismissals and collective dismissals. Accordingly, job security provisions can be applied to indefinite-term press employment contracts. Conditions such as the number of employees in the workplace, six-month seniority, and the journalist not being the employer’s representative will also be taken into consideration. Grounds for termination arising from the employee and the workplace will be relied upon. As a result, the employer will only be able to terminate the journalist for a reason arising from the incompetence of the employee, his/her behavior or the requirements of the workplace, enterprise and business. In this direction, it is a fact that the job security provisions of the Law No. 4857, which are applied by analogy, do not provide full job security for the idea worker.
http://e-dergi.marmara.edu.tr/maruid/article/viewFile/5000013310/5000013627,15/03/2015 saat.15.00
