- February 2, 2023
- Posted by: Fikret Ege Deligönül
- Category: Labor Law
Article 407/2 of the Turkish Code of Obligations regulates the protection of the employee’s wages. According to the provision of the law titled “Protection of Wages”,
“The employer may not exchange the wage debt with the receivable from the employee without the consent of the employee. However, receivables arising from a judicially fixed damage caused by the employee may be exchanged up to the attachable portion of the wage.”
By examining the regulation from four different points, it can be determined under which conditions the employee’s wage debt can be met by way of exchange.
Employee’s Consent to the Exchange
Article 407 regulates that the employer cannot exchange the wage debt with the receivable from the employee, without the consent of the employee. It shall be against the law for the employer to make such an exchange without consent. This is the case in various established case law of the 9th Chamber of the Court of Cassation,
Article 407/2 of the Code of Obligations regulates that employers’ debts regarding wage cannot be exchanged without consent of the employee. However, in various decisions by Court of Cassation, it is stated that employee receivables too, such as severance and notice pay, cannot be exchanged without consent of the employee.
Since severance and notice pay are considered to be receivables, not wages, it should be accepted that severance and notice pay can be exchanged without the consent of the employee. However, the Court of Cassation in its established precedents gives decisions to the contrary. (9th Civil Chamber of the Court of Cassation, 2014/2121 E., 2015/13350 K., 2011/51398 E., 2013/34435 K.)
Judicially Fixed Damage Caused by The Employee
According to the law, receivables arising from a judicially determined damage caused intentionally by the employee may be exchanged up to the attachable portion of the wage. Thus, it will be possible to make an exchange from the wages of the employee, without the consent of the employee, only if a damage caused by the employee intentionally is established by a judicial decision.
In the case of receivables arising from a judicially determined damage caused intentionally by the employee, the employee’s wage may be exchanged with the employer’s receivable up to the attachable portion of the wage.
According to Article 35 of the Labor Law No. 4857, “No more than a quarter of the monthly wages of the workers can be garnished or transferred and assigned to someone else.” Therefore, in case of an exchange based on a court decision without the consent of the worker, only 1/4 of the worker’s wage can be subject to exchange.
Since it is accepted by the Court of Cassation that severance pay and notice pay can be attached in their entirety, if the severance and notice pay are exchanged from the employee’s debts in return for a loss fixed by a court decision, it should also be accepted that all of the compensation can be attached for employee’s debts without employee’s consent, since there is no limit to attachability here. (12th Civil Chamber of the Court of Cassation, 2004/22540 E., 2004/26972 K.)
It should be noted that this legal limitation on attachability will only exist in the absence of the consent of the employee. Upon the consent of the employee, the wage debt and the entire receivable can be exchanged. The employer and the employee may mutually agree to terminate their receivables and payables by means of an arrangement in the employment contract.
It is clear that there are contradictions between the provisions of the law and the decisions of the Court of Cassation regarding the settlement of the employee’s debts through exchange. For this reason, it is important for employers and/or employees to seek legal assistance in their lawsuits regarding these matters.