Evaluation of Saturday in the Use of Annual Leave

Annual paid leave is a right to rest that derives its source from the Constitution and its principles are regulated in the Labor Code and the Regulation on Annual Paid Leave. In Article 53 of the Labor Code, the conditions for entitlement to annual leave and the minimum number of days are determined, and despite the regulation based on the code, there are still problems that confront the employee and the employer in practice and are subject to disputes. In practice, it is seen that Saturdays are also counted as annual leave days and this issue will be examined in this article.

Article 53 of the Labor Code stipulates that annual paid leave shall be granted to employees who have worked for at least one year, including the probationary period, from the day they start working at the workplace, that the right to annual paid leave cannot be waived, and that the period of annual paid leave to be granted to employees shall be determined by the length of service and canot be less than;

• Fourteen days for those with one to five years (including five years),
• Twenty days for more than five years and less than fifteen years,
• Twenty-six days for those with fifteen years (inclusive) or more.

The duration of annual paid leave to be granted to employees aged eighteen and under and employees aged fifty and over may not be less than twenty days, and finally, the aforementioned annual leave periods may be increased by employment contracts and collective labor agreements.

In the evaluation of this issue, it will undoubtedly be necessary to examine the regulations on week holidays together with the regulations on annual leave. Pursuant to Article 46 of the Labor Code, a week holiday is defined as a 24-hour uninterrupted rest day within a 7-day period after a 45-hour work week. Therefore, as a rule, one day a week (Sunday in most workplaces) is considered as a week holiday and Saturday is considered as a working day. Although this is the general rule, since it is possible to distribute the working hours of 45 hours per week differently, provided that they do not exceed eleven hours per day in accordance with Article 63 of the Labor Code, it is possible to work 5 days as working days and give 2 days off, which is the general practice, especially for white-collar employees. In the event that 5 days of work are performed at the workplace and Saturday and Sunday are holidays, Saturday is not considered as a working day, but as a contractual holiday. In this case, in other words, in the event that it is not explicitly written in the employment contract that Saturday is a week holiday, it will not be contrary to the law to deduct Saturday from the remaining leave period.

In the event that there is no working on Saturday at the workplace, the Court of Cassation has ruled that the unworked Saturday will not be added to the annual leave period due to the fact that it is a contractual holiday. In other words, one more day will be deducted from the remaining leave period due to the Saturday remaining in the annual leave period, only Sunday will be considered as a week holiday and will not be deducted from the annual leave period. At this point, in order to be able to deduct Saturday from the annual leave days, there should be a situation such as, for instance, the employee going on annual leave on Thursday and starting work on Monday. In simpler terms, Saturday can only be deducted from the number of leave days if and only if it falls within the leave period. In our example, the relevant employee will be considered to have used 3 days of annual leave (Thursday, Friday and Saturday).[1]

The decision of the 22nd Civil Chamber of the Court of Cassation numbered 2019/7906 E. is also in this direction;

"...the clear regulation in the employment contract is that Saturday will be counted as a working day and the week holiday period will be one day (24 hours) while using the annual paid leave right. Since this regulation is not contrary to the relative mandatory provision in Article 46 of the Labor Law No. 4857, which states that "at least twenty-four hours of uninterrupted rest (week holiday) shall be given within a seven-day period", it is necessary to apply by counting only one day period as a week holiday within the time period when the workers use their annual paid leave right..."

Although it is regulated in the Labor Code that 24 hours of uninterrupted rest within a 7-day period is a week holiday, it may be agreed in the employment contract that Saturday is also a week holiday in favor of the employee. In the event that it is clearly determined in the individual and collective labor agreement that Saturday and Sunday are week holidays, both days will not be counted from the annual leave period in accordance with paragraph 5 of Article 56 of the Labor Code, because the relevant regulation is as follows;

"Article 56 - (f.5) In the calculation of annual paid leave days, national holidays, week holidays and general holidays that coincide with the leave period are not counted from the leave period"

In other words, this time, Saturdays and Sundays that fall within the annual leave period will not be taken into account in the annual leave calculation, and Saturday will be considered as annual leave and 1 more day will not be deducted from the remaining leave period. For example, an employee who takes annual leave on Thursday and starts work on Monday will be deemed to have used only 2 days of annual leave in total, on Thursday and Friday.

Finally, it should be noted that even if it is agreed in individual and collective labor agreements that Saturday is a week holiday, if it is clearly stated that Saturday, which is added to the week holiday, will be counted as a working day in the annual leave calculation, 1 more day will be deducted from the remaining annual leave period due to the Saturday falling within the annual leave period; Sunday will not be deducted from the annual leave period due to being a week holiday. For example, an employee who takes annual leave on Thursday and starts work on Monday will be considered to have taken 3 days of annual leave (Thursday, Friday and Saturday). In a decision of the 22nd Civil Chamber of the Court of Cassation, this issue has been clearly ruled.[2]

As a result, the situation can be summarized as follows as a result of the evaluation of the legal regulations regarding annual leave and weekends;

• As a rule, if the employment contract does not stipulate that Saturday is a week holiday, but there is no actual work on Saturday at the workplace, 2 days will be deducted from the remaining annual leave period of the employee who takes annual leave on Friday, and the employee will be deemed to have taken annual leave on both Friday and Saturday.
• Unlike the general rule, in the event that it is agreed in individual and collective labor agreements that Saturday is a week holiday, one day will be deducted from the remaining annual leave period of the employee who takes annual leave on Friday, and since Saturday and Sunday are considered as week holidays, these days will not be included in the annual leave period.
• Even if it is agreed in individual and collective labor agreements that Saturday is a week holiday, if the contract also clearly states that this Saturday, which is added to the week holiday, will be counted as a working day in the annual leave calculation, 2 days will be deducted from the remaining annual leave period of the employee who is on annual leave on Friday, and he will be considered to have used annual leave on both Friday and Saturday.

[1] (İş Hukukunda İçtihat Farklılıklarının Giderilmesi Kararları ve Yorumu (Yargıtay 9. HD'nin İş Hukukundaki İçtihat Farklılıklarının Giderilmesi Yönündeki 2020 Yılına Ait 41 Kararı), Av. Ahmet Evcimen, 1st Edition, January 2021, p.5)

[2] 22nd Civil Chamber of Court of Cassation Decision No: E. 2018/9873, K. 2018/22569, T. 18.10.2018

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