IF AN EMPLOYEE WHO LEAVES THEIR JOB TO PERFORM THEIR MILITARY SERVICE BY RECEIVING SEVERANCE PAY RETURNS TO WORK AT THE SAME WORKPLACE AFTER COMPLETING THEIR SERVICE, ON WHAT BASIS IS THEIR ANNUAL LEAVE PAY CALCULATED?

HOW IS THE ANNUAL LEAVE PAY CALCULATED IF AN EMPLOYEE WHO LEFT THEIR JOB TO PERFORM MILITARY SERVICE BY RECEIVING SEVERANCE PAY RETURNS TO WORK AT THE SAME WORKPLACE AFTER MILITARY SERVICE?

Article 54 of the Labor Law No. 4857 states that "in calculating the period required to qualify for annual paid leave, the periods during which workers have worked at one or more workplaces of the same employer shall be combined and taken into account..." While some authors argue that the previous period of service must be taken into account in accordance with the legal provision, others argue that a person who leaves their job by receiving severance pay and other rights due to retirement or military service and subsequently starts working again at the same workplace should be considered as having a new employment contract, and that the previous period of service should not be taken into account. In the decision of the 9th Chamber of the Court of Cassation dated 17.05.2004, numbered E: 2003/23749, K: 2004/12114, it is stated in summary that; "according to Article 54 of the Labor Law No. 4857; although it is clearly emphasized in the article that the worker's departure from the workplace due to military service and this departure will be taken into account in the calculation of leave days for the service period before military service, there is no legal basis for filing a lawsuit in the form of a declaratory judgment in this regard," indicating that the leave seniority of workers who continue to work at one or more workplaces of the same employer after leaving their job due to military service will be maintained.