Onur BAKIR
Due to the pandemic, firing workers was banned on April 2020. However, layoffs made based on the 2nd paragraph of Article 25 of the Labour Law, i.e. "situations of defiance of rules of ethics and goodwill and similar reasons", are excluded from the scope of this prohibition. I wrote in Evrensel that this regulation almost encourages and makes it attractive to base layoffs on 25/2, which is the gravest form of a layoff, and allows employers to circumvent the ban with unilateral Code 29 notifications to SGK [Social Security Institution – translator’s note].
I wish I were wrong, but according to the data published by the DİSK Research Department, 176 662 workers were laid off in 2020 using Code 29. When we include the layoffs in 2021, more than 200 000 workers were put on the streets without severance pays nor termination benefits while the pandemic continued. Since unemployment aid is not granted on a dismissal by Code 29, the workers who were dismissed this way were deprived of their jobs, income, short-time work allowance and money wage support, severance pays and termination benefits as well as unemployment aid.
AT LEAST 50 000 FEMALE WORKERS HAVE BEEN LABELLED
While the Covid-19 pandemic continued, that is, while finding a job was harder than ever, at least 200 000 workers remained unemployed and without income. As if this was not enough, those more than 200 000 workers were accused of violating the "rules of ethics and goodwill" and were blacklisted in SGK records. Approximately 50 000 of these workers are women. In Turkey, the country that comes last in female employment in Europe, where out of 10 women of working age only 3 were employed, where there are countless economic, social and the cultural obstacles to female employment, where female labour is labelled as "preparation to prostitution" on television, now 50 000 female workers are marked as “unethical” workers in SGK records.CODE 29 AND THE SMILES BENEATHE THE MOUSTACHES
To see the consequences of this profiling of female labourers, it is enough to look at a question coming to our "We Have Rights" column of Ekmek ve Gül. The female worker dismissed by Code 29 for reminding the employer that it is forbidden to lay off during the pandemic says:
“I was fired on Code 29. I am a 23-year-old woman. Initially I told myself nothing would happen, I did not think about it, but now I am looking for a job and everybody looks like me as something immoral, dishonourable, or whatever bad thing you can think of... I go to job interviews, but they know each other in my industry. Their constant implications and laughter beneath their moustaches are deeply saddening. As a woman, I am really crushed by this code.”
THEY WILL SEEK CODE 29!
When the layoffs from Code 29 turned into a massacre, the call for "banning Code 29" became popular both on social media and in workplaces, and the SGK found the "remedy" to remove Code 29 and replace it with new codes. In the second paragraph of Article 25 of the Labour Law, nine different "behaviours that do not comply with the rules of morality and goodwill" are listed. SGK produced new layoff codes for each of them, so now there were nine different codes from Code 42 to Code 50.
When the SGK made the problem worse. Because the removed Code 29 stood for "situations that do not comply with the rules of morality and goodwill", there were no details. However, the newly introduced codes also gave the details of that "immorality". Employers will now be able to tag workers with, for instance, "behaviour violating honour and virtue" (Code 43), "sexual harassment" (Code 44), "drug and alcohol use" (Code 45) or "theft" (Code 46).
THE FLIES AND THE SWAMP
Gone Code 29; Come Codes 43, 44, 45, 50 ... A single fly turned into nine. Although the swamp is still right in the middle. Yes, they are flies that bite the workers, but those flies come from a large swamp. It is impossible to get rid of those flies without drying the swamp...
So what is in that swamp?
1) HALF OF THE WORKERS LACK ANY SECURITY
Legal job security came to Turkey in 2001. Workers at workplaces with 10 or more employees were included in the scope of "job security". However, the AKP government increased the "10 workers" condition to 30 in 2003. Thus, millions of workers were excluded from an already limited job security system. Almost half of all workers in Turkey are excluded from the job security measures due to the "30 workers" precondition. Employers can fire these workers at any time, without any justification, and workers cannot file a reemployment lawsuit. Millions of workers, especially female workers in small-scale businesses, have no security against arbitrary layoffs.
2) WITHOUT COMPENSATIONS FIRING WORKERS IS EASIER
Let us talk about the workers who are covered by job security. According to the Labour Law enacted in 2003, to dismiss “with compensation” a worker covered by job security under Article 18 of the Labour Law the employers must provide legal justification, terminate the employment contract in writing, and - if the dismissal is due to the worker’s behaviour – take the defence of the worker. However, these conditions are not applied to dismissals without compensation based on the 2nd paragraph of Article 25 of the Labour Law (i.e. old Code-29, new Code 42-50). The reason for this is the Supreme Court’s legal precedent that is neither reasonable, logical, lawful nor compliant with the law itself! For example, according to the Supreme Court, before a compensated dismissal due to inefficiency based on Article 18 of the Labour Law, the defence of the worker must be taken, and the dismissal must be written and be justified. Yet, according to the same Supreme Court, the employer does not have to obey these rules in the immediate dismissal without compensation based on 25/2. In other words, the employer does not have to take the defence of the worker, make a written notification nor provide justification! Just because the Supreme Court interprets the law in this way!
3) SGK’S NOTIFICATION BENEFITS THE EMPLOYER
In accordance with the relevant regulations, the employer must give a "dismissal declaration" to the SGK after dismissal. This notification can be made on the internet. The employer is required to show a "dismissal code" when making this notification. The employer can make a notification using any code he wants and also change it. The SGK does not interfere with this code nor does it ask the employer for proof. However, according to the relevant memorandum, the worker (unless in possession of a court order) cannot change this code. Thus, the employer can provide any code he wants using a one-sided notification to the SGK, thus can blacklist the worker and deprive him of unemployment benefits.
4) UNIONISATION RATE IS TOO LOW
The greatest assurance of the workers is to be a union member and to work under a collective agreement. Collective agreements can strengthen the job security of workers and prevent arbitrary, especially uncompensated dismissals, while the power of workers organisation provides an important assurance. However, the unionization rate in Turkey is extremely low; 15.5 percent for male and 8.8 percent for female workers. The rate of those benefiting from a collective agreement is even lower.
WE CAN DRY THIS SWAMP!
The dismissal “ban” due to Covid-19 turned the Code-29 dismissals without compensation into an "epidemic". The dismissal ban, which remains largely on paper, will end on May 17th. However, during the pandemic, there is an urgent need to ban all types of layoffs and to give Code-29 victims their rights.
However, a more comprehensive and permanent change is also necessary. It is highly important to remove the 30 workers clause, to introduce an effective and strong job security system that protects all workers against dismissals with or without compensation, to completely change the SGK notification system and to remove the obstacles to unionisation.
Otherwise, the swamp of precariousness, even more visible due to Covid-19, will continue to drag workers down and hurt female workers the most.
These and other problems faced by workers are not on the government's agenda! While tens of thousands of pregnant workers deprived of their right to maternity and breastfeeding allowances for not having paid their premiums for over a year due to the pandemic wait for a single article amendment; a bill prepared by the government that bases the incapacity benefit calculations not on the earnings of the last 3 months', but of the last year, shows that the ruling class is instead trying to reap even more of the workers money!
This is exactly why a united and powerful struggle is an urgent and burning need!
Yusuf Karadaş
Yücel Özdemir
