Transfer Of The Service Contract
Article 429 of the Turkish Code of Obligations No. 6098, titled “Transfer of the Contract,” states: “A service contract may only be transferred to another employer on a permanent basis with the written consent of the employee. Upon transfer, the transferee becomes the employer party to the service contract, assuming all rights and obligations. In such cases, the employee’s rights related to the duration of service are determined based on the date they commenced employment with the transferring employer.”
As stated in the provision, the transfer of a service contract can be defined as the transfer of an employee working under a service contract from one company to another, provided that all the employee’s rights are protected, in cases where there is activity in the workplace and the parties have such needs.
LEGAL CHARACTERISTICS OF THE TRANSFER OF THE EMPLOYMENT CONTRACT
1-Obtaining the Employee’s Written Consent:
The transfer of a service contract involves a tripartite relationship between the employee, the employer, and the employer assuming the service contract. With the transfer, it is anticipated that the employee will henceforth provide services to the assuming employer. In the transfer of a service contract, it is essential that the intentions of the transferring and assuming employers, as well as the employee, align regarding the transfer.
The employee’s written consent must be obtained before the transfer of the service contract. Written consent may also be obtained during the transfer. However, obtaining written consent from the employee after the transfer is not legally valid. If the employer carries out such an application without the employee’s consent, and the employee refuses to accept it and does not start work at the other employer’s workplace, the employment contract will be deemed to have been terminated by the employer.
2-Form of the Transfer Agreement:
Article 205, Paragraph 3 of Law No. 6098, which generally regulates the transfer of contracts, states: “The validity of the transfer of a contract depends on the form of the transferred contract.”
Article 429 of the Turkish Code of Obligations No. 6098 does not contain any provisions regarding the form of the assignment agreement for a service contract. Additionally, if the employee’s written consent regarding the assignment of the service contract is required during the assignment process, the contract must be executed in writing as a condition of validity. Apart from this matter, the contract does not necessarily have to be in writing. The transfer may also be carried out by verbal or even implied agreement between the transferring and receiving parties.
On the other hand, the transfer contract being in writing is important in terms of preventing future disputes and for the purposes of evidence law.
LEGAL CONSEQUENCES OF THE TRANSFER OF A SERVICE CONTRACT
The transfer of a service contract terminates the employment relationship between the employee and the transferring employer. However, the employment contract continues without interruption with the new employer. Therefore, the termination of the contract and the establishment of a new employment relationship are not at issue. In this way, the transferring employer avoids the consequences of termination, and the employee retains their seniority-based rights, while the continuity of the employment relationship is preserved, and the acquiring employer’s need for senior staff is met. With the transfer of the service contract, all rights and obligations under the contract are transferred to the acquiring employer without any changes.
With the transfer of the servicecontract, the employment relationship between the transferring employer and the employee comes to an end, so the transferring employer is not liable for any claims or obligations arising after the transfer date. The rights and obligations arising from the transfer date onwards belong to the acquiring employer, who is a party to the contract.
However, there is no legal regulation regarding the determination of liability for unpaid wages that arose during the period of the transferring employer. For this reason, it is considered that the liability of the transferring and acquiring employers for claims up to the transfer date should be determined by analogy with the provisions of Article 6 of the Labor Law No. 4857, which regulates the transfer of the workplace, and Article 14 of the repealed Labor Law No. 1475, which is still in force. The transferring employer should be jointly liable with the acquiring employer for debts incurred during their respective periods, for a period of two years, as in the case of a workplace transfer. Joint liability also applies to severance pay. However, pursuant to Article 14 of Law No. 1475, the liability of the transferring employer for severance pay accrued during its own period is subject to a statute of limitations of 10 years as provided by law.