1. General Rule: Wages Are the Consideration for Actual Work
According to established case law of the Court of Cassation, wages are, as a rule, the consideration for work performed. Therefore, unless there is a contractual provision to the contrary, the employer is not obliged to pay wages for periods during which the employee is on sick leave and does not actually work.
Indeed:
- In the decision of the 21st Civil Chamber of the Court of Cassation dated 26.05.2015 (File No. 2014/15664, Decision No. 2015/11944), it was held that unless otherwise stipulated in an employment contract or a Collective Bargaining Agreement (CBA), the employer has no obligation to pay wages during periods of illness. The decision further states that, pursuant to Law No. 506 and the current Law No. 5510, the insured employee is entitled to a temporary incapacity allowance, that wages are not paid by the employer during this period, and that such periods cannot be considered as “premium-paid days.”
- Similarly, in the decision of the 7th Civil Chamber dated 28.06.2016 (File No. 2016/13107, Decision No. 2016/13890), it was emphasized that “since there is no obligation for the employer to pay wages on days when the employee is on sick leave and does not actually work, it is incorrect to calculate and award wages for such periods.”
- In the decision of the 22nd Civil Chamber dated 13.11.2012 (File No. 2012/5498, Decision No. 2012/25008), it was explicitly stated that, in the absence of a provision in the employment contract or the CBA regarding payment of wages during sick leave, such wages cannot be claimed from the employer.
2. Situation for Employees Working After Retirement
For employees who continue to work after retirement and are subject to Social Security Support Premium (SGDP), court decisions indicate that no distinct approach is adopted regarding wage payment during sick leave; instead, general labor law principles continue to apply.
In this regard:
- In the decision of the 3rd Civil Chamber of the Adana Regional Court of Appeal dated 23.05.2023 (File No. 2021/2173, Decision No. 2023/909), it was determined that an employee who continued working after retirement was reported as having “missing days” and was not paid wages during a sick leave period following a traffic accident. The court held that receiving a pension does not preclude entitlement to compensation for temporary incapacity and recognized the loss of income during the sick leave period as damage. This approach indirectly demonstrates that, unless otherwise agreed, the employer is not obliged to pay wages during such periods.
- In the decision of the 21st Civil Chamber dated 11.12.2018 (File No. 2017/5250, Decision No. 2018/9141), it was emphasized that although employees continue their employment relationship after retirement, actual work performed must be taken as the basis for determining premiums and wages.
3. Contractual Arrangements and Exceptions
Contrary to the general rule, it may be agreed in an employment contract or a Collective Bargaining Agreement that wages during sick leave will be paid in full or partially by the employer. In such cases, the employer is bound by the contractual provisions.
For example:
- In the decision of the 9th Civil Chamber (2007) (File No. 2006/17703, Decision No. 2007/9055), it was held that if the employment contract stipulates that the portion of wages not covered by the Social Security Institution will be paid by the employer, the employer is obliged to pay this difference.
- In the decision of the 9th Civil Chamber dated 16.12.2019 (File No. 2016/10974, Decision No. 2019/22392), it was stated that for employees receiving a fixed (monthly) salary, the employer does not have a legal basis to unilaterally deduct wages for short-term sick leave periods; however, if the employee receives a temporary incapacity allowance from the Social Security Institution, this amount may be set off against the wage.
Conclusion
When the case law of the Court of Cassation is evaluated as a whole:
- The general principle remains unchanged for employees who continue working after retirement.
- Unless there is a specific provision in the employment contract or the Collective Bargaining Agreement stipulating payment of wages during sick leave, the employer is not obliged to pay wages for such periods.
- The principle that wages do not accrue during periods without actual work due to sick leave is consistent with established judicial precedents.