Turkish and Swiss Law on the Payment to be made by the Employer to the Survivors of the Deceased Employee within the Framework of the Code of Obligations
The legal consequences of the death of the employee during the legal existence of the employment contract between the employee and the employer are regulated in the Code of Obligations, inspired by the general rule in the Swiss Code of Obligations, and there is no general regulation in this directio...
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| Format: | Article |
| Language: | deu |
| Published: |
Istanbul University Press
2024-11-01
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| Series: | Annales de la Faculté de Droit d’Istanbul |
| Subjects: | |
| Online Access: | https://cdn.istanbul.edu.tr/file/JTA6CLJ8T5/24C3835EEE6147DF8AF1A699367C29D2 |
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| Summary: | The legal consequences of the death of the employee during the legal existence of the employment contract between the employee and the employer are regulated in the Code of Obligations, inspired by the general rule in the Swiss Code of Obligations, and there is no general regulation in this direction in the labour legislation. According to this rule, the employment contract is terminated upon the death of the employee, and the contract does not continue with the legal heirs of the deceased employee. The emergence of this result upon death agrees with the obligation of the employee to personally perform the work undertaken by the employee under the employment contract. In Switzerland, with a subsequent amendment, the obligation of the employer to make a payment to the survivors of the deceased employee has been added to this rule regarding the effect of the death of the employee on the employment contract, even if the death has occurred and the employment contract has been terminated. Accordingly, the employer is obliged to make a payment of one or two months’ wages, depending on the length of seniority at the date of death, to the relatives of the deceased employee. This right, which was expected following the amendment to the Swiss Code of Obligations, has been transferred almost verbatim to the Turkish Code of Obligations, except for a few points. Thus, a new right that can be claimed from the employer upon the death of the employee, provided that certain conditions are fulfilled, has taken its place in Turkish Law. In this study, after explaining the effect of the death of the employee on the labour contract, Article 338 of the SCO and Article 440 of the TCO, which is based on this regulation, will be discussed. The legal regulations regarding the payment to be made by the employer to the survivors of the employee due to the death of the employee, the term to be used to express the payment, the nature of the payment, the conditions of entitlement to payment, who the beneficiaries are, the amount of payment, the calculation of the amount of payment, the allocation of the calculated amount among the beneficiaries, the moment the receivable becomes due, the interest to be applied, The starting date of the interest, the statute of limitations, the relative mandatory character of the provision, the question of whether the workers subject to the Labour Law and the seafarers subject to the Maritime Labour Law have the right to demand this payment, and whether the payment in question can be demanded together with the severance pay, are discussed by taking into consideration the differences between the Turkish and Swiss Law practise. |
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| ISSN: | 0578-9745 2687-4113 |