- Legislation on Annual Leave
Pursuant to Article 9 of Private Educational Institutions Law numbered 5580 (“PEIL”), which entered into force on 14.02.2007, teachers employed in private educational institutions are subject to the Social Insurance Law Numbered 506 and the Labor Law numbered 4857 (“Labor Law”) in terms of social security and personal rights. Since annual leave is considered within the scope of personal rights, the regulation clearly emphasizes that teachers are subject to the provisions of the Labor Law regarding annual leave.
Similarly, Article 42 of the Regulation on Private Educational Institutions of the Ministry of National Education (“Regulation”), published in the Official Gazette dated 20.03.2012 and numbered 28239, also stipulates that teachers working in private institutions are subject to the Labor Law in terms of personal rights.
In this respect, Article 53 of the Labor Law provides that the minimum duration of annual leave shall be:
a) Fourteen days for employees who have worked between one and five years (inclusive),
b) Twenty days for employees who have worked more than five years but less than fifteen years,
c) Twenty-six days for employees who have worked fifteen years or more.
It should also be noted that annual leave periods may be increased through employment contracts or collective bargaining agreements.
According to Article 56 of Labor Law, weekly rest days are not counted within annual leave. Article 46 of the same law defines weekly rest as an uninterrupted rest period of at least twenty-four hours within a seven-day time frame. Since employment contracts of teachers in private institutions may be arranged as six days of work with Sunday as the weekly rest day, in this case Saturday is counted as part of the annual leave period, while Sunday is not, as it constitutes the weekly rest day. However, if Saturday is contractually defined as a non-working day in the employment agreement, both Saturday and Sunday shall be considered weekly rest days and should not be deducted from annual leave.
The Opinion Letter of the General Directorate of Private Educational Institutions of the Ministry of National Education dated 12.07.2019 and numbered 95178074-405.01-E.13396031, states that:
“Since teachers and administrators working in private schools are subject to the Labor Law No. 4857, they cannot use mid-term and summer holidays in the same manner as teachers working in public schools. These administrators and teachers are required to use their leave in accordance with Article 53/2 of the Labor Law No. 4857.”
According to Articles 5 et seq. of the Regulation on Paid Annual Leave, published in the Official Gazette dated 03.03.2004 and numbered 25391, employees have the right to use their annual paid leave earned for each service year within the following year, at a time determined by the employer. In this respect, both the “time of use” and the “duration of annual leave” are subject to the determination of the employer.
In its decision dated 05.02.2019, numbered E.2015/34993, K.2019/2773, the 9th Civil Chamber of the Court of Appeal held that:“…Pursuant to the Labor Law and related legislation, the employee cannot use annual leave whenever he wishes. The employer has the authority to determine the period and time of use of the leave. If the employee leaves work after submitting a leave request without waiting for the employer’s approval, this indicates that the employee terminated the employment contract on that date…”
Similarly, in its decision dated 12.02.2019, numbered E.2015/30289, K.2019/3349, the 9th Civil Chamber of the Court of Appeal reached a parallel conclusion.
Annual leave is essentially a rest period that must be used within each service year. To protect the right to rest, it must be used during the relevant year; however, if not, it may be carried over to the following year. It should be emphasized that, as clearly stated in the decisions of the Court of Appeal, unused annual leave cannot be converted into monetary compensation while the employment contract is still in force. Such compensation is only possible pursuant to Article 59 of the Labor Law, when the employment relationship is terminated, and payment shall be made based on the employee’s final wage.
It should further be noted that in lawsuits filed by employees claiming to have used very few days of annual leave despite long years of service with the same employer, the Court of Appeal has ruled that such allegations are contrary to the ordinary course of life and has awarded compensation only for a portion of the unused leave. For instance, in its decision dated 03.12.2019, numbered E.2016/22704, K.2019/22241, the 22nd Civil Chamber of the Court of Appeal considered the claim that the employee had used only ten days of leave over a fifteen-year period to be unrealistic.
It should also be underlined that maternity and breastfeeding leaves are regulated separately under different provisions of law and are not related to annual leave entitlements.
- Professional Activities of Teachers During Mid-Term and Summer Breaks
According to Article 26 of the Regulation, the employment contract between private institutions and teachers is structured on the basis of a maximum of 20 hours of compulsory teaching and 20 hours of additional lessons per week, totaling 40 hours. Thus, the maximum limit for additional lessons is 20 hours per week. The legislation stipulates that additional lesson fees shall only be paid in return for additional lessons actually delivered.
As confirmed by judicial decisions, teachers must be paid additional lesson fees for lessons actually taught. However, no other provision in the Regulation refers to any other entitlement to additional lesson payments.
Pursuant to legislation, professional activities encompass training aimed at enhancing teachers’ and administrators’ knowledge and skills, addressing educational challenges, participating in program and regulation evaluations, attending committee meetings, and preparing for the upcoming academic year. In this context, it is evident that actual teaching cannot be considered a professional activity.
In practice, issues arise where private institutions, during mid-term or summer breaks, organize study sessions, question-solving, or courses for 8th and 12th grade students. Even though such activities may be conducted with the consent of teachers and with Ministry approval, they constitute actual teaching and therefore cannot be classified as professional activities. Accordingly, if such teaching remains within the limit of 20 hours per week, no additional fee is due, but if it exceeds this threshold, teachers become entitled to additional lesson fees. Nevertheless, even where payments are made, institutions have been criticized by inspectors for allegedly conducting educational activities during mid-term or summer breaks.
Article 47 of the Labor Law provides that if an employee does not work on national or public holidays, he is entitled to receive his full wage; if he does work, he is entitled to an additional one-day wage for each day worked.
Article 10/1 of the Regulation stipulates that the academic calendar prepared for public schools shall also apply to private schools, subject to approval by the governor’s office for any different arrangements. However, this calendar regulates only the beginning and end dates of the school year and does not address annual leave or professional activities. Likewise, Article 10/7 provides that no education or training may be carried out on days recognized as national or public holidays.
Therefore, since mid-term and summer breaks are not considered national or public holidays under the relevant legislation, they should not be subject to additional remuneration either under the Labor Law or the Regulation.
It should also be noted that when private institutions call teachers to attend ceremonies on national holidays, even if no classes are taught, such attendance constitutes work and teachers must be paid an additional one-day wage, irrespective of the number of hours worked. For this reason, if a national holiday coincides with the weekly rest day, holding ceremonies on the same day creates significant additional costs for the employer and is therefore generally avoided.
Within the scope of the relevant legislation, it is not legally incorrect for teachers employed under permanent contracts in private institutions to take annual leave in accordance with the provisions of the Labor Law and to be present at the school during the remaining periods.
Similarly, for teachers employed in public schools, Article 38 of the Regulation published in the Official Gazette dated 26.07.2014 and numbered 29072, and Article 87 of the Regulation published in the Official Gazette dated 07.09.2013 and numbered 28758, provide that professional activities may be carried out during mid-term breaks.
However, pursuant to the Council of Ministers’ Decision numbered 2006/11350, teachers employed in public schools are entitled to additional lesson fees for professional activities conducted during mid-term and seminar periods. This regulation, however, applies only to public school teachers and does not extend to private institutions.
- Criticism by Inspectors of the Ministry of Labor and Social Security in Practice
Although the legislation is clear, labor inspectors have, in practice, criticized private institutions during audits, arguing by analogy that the entitlement to additional lesson payments recognized for public school teachers should also apply to private school teachers undertaking professional activities during summer breaks. Consequently, sanctions have been imposed. However, as is evident from the following precedents, such criticisms are unfounded and contrary to law.
In its decision dated 19.02.2018, numbered E.2015/25542, K.2018/3919, the 22nd Civil Chamber of the Court of Appeal stated that:“…The lower court erred in ruling that the payments stipulated in Articles 6/3 and 11 of the Council of Ministers’ Decision No. 2006/11350 should be made to the claimant. As explained above, this Decision may only be applied in matters not regulated by Law No. 5580 and its Regulation. Since Article 9 of Law No. 5580 regulates personal rights, the provisions of the Decision are not applicable. Payments stipulated under Articles 6/3 and 11 relate to remuneration that constitutes part of the salaries of public school employees and cannot be extended to private school teachers. Therefore, claims for such payments must be rejected…”
In a similar vein, in its decision dated 28.04.2021, numbered E.2021/4439, K.2021/8613, the 9th Civil Chamber of the Court of Appeal held that:“…The lower court erred in ruling that the claimant should be paid under Articles 6/3 and 11 of the Council of Ministers’ Decision No. 2006/11350. As explained above, the Decision may only be applied in matters not regulated under Law No. 5580 and its Regulation. Since Article 9 of Law No. 5580 explicitly regulates personal rights, the relevant provisions of the Decision are not applicable to private school teachers. Accordingly, claims based on these provisions must be rejected…”
Likewise, in its decision dated 01.03.2023, numbered E.2022/203, K.2023/146, the General Assembly of the Court of Appeal emphasized that:“…As stated above, the Council of Ministers’ Decision may only be applied in matters not regulated by Law No. 5580 and the Regulation. Since Article 9 of Law No. 5580 contains explicit provisions concerning private school teachers, the claims based on Articles 6/3, 11, and 18 of the Decision must be dismissed…”
Other decisions of the Court of Appeal, including those of the 22nd Civil Chamber dated 21.06.2018 numbered E.2015/34474, K.2018/15585; dated 22.11.2016 numbered E.2015/19782, K.2016/25706 and dated 08.06.2017 numbered E.2017/30600, K.2017/13714 are in the same line.
- Conclusion
In light of legislative provisions and Court of Appeal precedents, when teachers in private educational institutions have exhausted their annual leave entitlements under the Labor Law, their participation in professional activities during mid-term or summer breaks, without actually teaching, cannot be considered within the scope of additional lesson payments. Conversely, criticisms based on the Council of Ministers’ Decision numbered 2006/11350 are contrary to legislation and judicial precedents, and therefore have no binding effect on private institutions.
Moreover, in practice, labor inspectors sometimes conduct audits based on a sample of only a few teachers’ contracts. This leads to additional lesson payments being imposed only for the contracts reviewed, while no criticisms are directed at other contracts, thereby avoiding a general application for all teachers. However, in some cases, inspectors extend their findings from a limited sample (e.g., ten teachers) to all teachers in the institution and impose sanctions accordingly. This creates disparities in wage practices among teachers and results in unrest within the institution.
It is observed that some private institutions, in order to avoid such criticisms, pay additional lesson fees to all teachers engaged in professional activities during summer breaks, even though there is no legal basis for such payments. This, in turn, imposes a significant and unwarranted financial burden on institutions.
Accordingly, it is advised that legal proceedings be initiated against these sanctions, which are inconsistent with the law and case precedents, as the probability of success is deemed strong.
Sincerely,
DT Law