Subsistence (Daily Subsistence)

The concepts of travel allowance and subsistence are constantly being confused in our legislation. Although there are very important differences, it is known that SSI premiums are deducted from travel allowance and subsistence is not included in SSI premiums. Below are Mr. Resul Kurt and Mr. Mehmet Maç’s articles on the subject.

As subsistence is included in the Income Tax Law Article 24 which mentions the equivalents of expenses, they are fundamentally a business-related expense and not an allowance provided to an employee. However, they happen to be a benefit and allowance in cases when they are paid in lump sum under the name of daily subsistence and not as an exact and certified travel expense and when partially saved by the employees. The amount beyond the legal degree qualifies as a payment subject to taxation.

On 18.09.2018, the Social Security Institution (SSI) issued “Circular Number 2018/32” which regulates Circular Number 2012/27 and resolves the issue regarding the prescription of institutional receivables.

According to the new regulation, from now on, the SSI directorates will conduct periodic investigations, which will scan workplace files and debts of the employees, starting with the oldest records to designate the owed debts to the institution. After investigating causes of interruptions or halts in prescription, obligators with an expired debt will receive a Debt Information Form. With this notification, obligators will be requested to pay their debts within 15 days. Along with the notification, if debtors would want to pay, SSI directorates will accept the payments.

Employment contracts with a fixed-term are a valuable instrument with respect to labor laws in many countries. Over time, many firms in Türkiye have begun using this type of employment contract as a way to circumvent the grant of various legal rights that come with indefinite term contracts. Issues with the application of regulation persist despite the numerous court decisions and attempts to stop the usage of fixed-term contracts to serve purposes other than those that they are intended to serve.

Due to the problems mentioned above, firms that have an actual need for fixed-term contracts to be applied to personnel often face problems resulting from the incorrect interpretation of the situation.

It is discussed in the decision with the number 2009/11728 E of the 9th Law Department of Court of Appeals if apologia is mandatory in case of a termination with a good cause by the employee. This is significantly important in the reemployment lawsuits brought by the employee who is terminated with a good cause by the employer. As it is known, the termination with good cause because of the employee behaviours is invalid unless an apologia is required from the employee. It is open to arguments if the same should be applied in the terminations with good cause. This decision which is being discussed set forth with a legal point of view, that apologia is not necessary in terminations with good cause. However an anectode should be stated here, in reemployment lawsuits brought on terminations with good cause, courts generally come to a decision that the good cause as the reason of the termination cannot be a cause but a valid reason for the termination, therefore the reemployment requests must be rejected. At this point, if the reason of the termination is accepted as a valid reason instead of a cause, then it will be a problem for the employer not to require an apologia. Therefore, it is recommended to record an apologia under any circumstance.