Employer’s Obligation to Prepare Personnel Files

Legal Notice: This article has been prepared within the framework of Turkish law.

Suna ŞANSAL
Legal Intern

1. INTRODUCTION

The personnel file is a registration file that contains documents regarding the beginning, continuation and termination of the employment relationship. A separate personnel file should be prepared for each employee.

Considering the relevant article of the Labor Law, it can be seen that the main elements of the personnel file consist of documents and records kept in accordance with the law.

 

2. FEATURES OF EMPLOYEE PERSONNEL FILE

2.1. OBLIGATION TO PREPARE PERSONAL FILE AND ADMINISTRATIVE FINE

As stated in the first section, it is a legal obligation for an employer subject to the Labor Law to prepare a personnel file for each employee employed based on an employment contract. A personal file must also be kept for foreign workers who have a work permit in Turkey.

In the event of a transfer of the workplace, pursuant to Article 6 of the Labor Law, since the employment contracts existing at the workplace on the date of transfer are transferred to the transferee with all their rights and obligations, the obligation to prepare the employee personnel file passes to the transferee employer as of the date of transfer.

There is no regulation requiring the records and documents in the personnel file to be kept in a physical environment. Therefore, the employer may keep the employee’s personnel file in electronic environment. However, documents with wet signatures must be kept in a physical environment.

The Labor Law stipulates an administrative fine for employers who do not organize personnel files. The amount of the administrative fine varies every year, the up-to-date amount of the fine can be accessed from open sources. Since the employee personnel file must be organized separately for each employee, an administrative fine will be imposed separately for each employee whose personnel file is not organized.

 

2.2. THE EVIDENTIARY NATURE OF THE PERSONNEL FILE AND ITS EFFECT ON CASE

Since the personnel file contains documents and records related to the beginning, continuation and termination of the employment relationship, these documents and records can be used as a means of proof in case of dispute between the parties. For example, the employer is obliged to prove that the employee has taken annual leave and in the absence of signed annual leave forms, it may not be possible to prove that the annual leave has been taken. In such a case, the employer may also be required to pay a leave fee for the annual leave granted.

In practice, the issue of proving overtime is also frequently discussed. An employer who regularly maintains scorecards and workplace entry-exit records will be able to provide evidence against unfair claims that may be directed against him/her.

In addition, the fact that personnel files are kept in an organized manner provides a significant advantage in the examinations to be carried out by state institutions such as the social security institution. The employer who is ready for the audits of the relevant institutions will be less likely to face sanctions.

 

3. CONTENT OF A PERSONNEL FILE

Throughout the employment relationship, many documents and records are included in the employee’s personnel file. Depending on the nationality of the worker, the type of employment and the work performed, the information and documents that should be included in the personnel file may vary.

The main documents that should be included in the personnel file are as follows:

  • Job application form,
  • Identification information of the employee,
  • Declaration of employment, 
  • Employment contract,
  • Work permits for foreign employees,
  • Documents showing military service status,
  • Criminal record,
  • A copy of the wage statement bearing the employee’s signature
  • Leave registration document showing annual paid leave and signed by the employee,
  • A document showing the employee’s consent for overtime work,
  • A document showing the employee’s consent to work on national holidays and general holidays,
  • Compulsory health report for employees to be employed in heavy and dangerous work,
  • A mandatory medical certificate before hiring children of working age,
  • A doctor’s approval, which is required if pregnant women work up to three weeks before giving birth,
  • Letter of termination from the employer/employee terminating the employment contract
  • Notice of termination of employment

Although not necessarily, many documents such as diplomas, CVs, certificates and performance evaluation charts are also included in personnel files through the practices of human resources departments.

 

4. PROTECTION OF PERSONAL DATA IN PERSONNEL FILE

Since the documents and records in the personnel file contain personal data, the way the file is kept is important within the scope of the Law on the Protection of Personal Data. In this context; the employer is obliged to first inform the employee by explaining why his/her personal data is collected, for what purpose and where it will be used, and with whom it will be shared. It is important to make the clarification in writing and to obtain the employee’s signature in terms of proof.

Since the health documents and records in the personnel file contain sensitive personal data, these documents must be kept under the custody of the workplace physician. In the absence of an occupational physician, they should be kept in a separate environment from the personnel file with the explicit consent of the employee and under the control of persons authorized to access them.

In the event that the reasons requiring the processing of the data disappear, the relevant personal data must be destroyed in accordance with the destruction policy established within the company.

In summary, it is important that personal data in the documents in the personnel file are processed in line with the principle of “purpose-limited and proportionate data processing” and that employees are informed about the data processing activity.

 

5. CONCLUSION 

In conclusion; it is a legal obligation for an employer subject to the Labor Law to organize a personnel file for each employee and administrative fines are stipulated in case of non-compliance with this obligation. In addition, since the documents and records in the personnel file can be used as a means of proof in possible disputes, it is critical to keep the file in accordance with the law and in an organized manner from the beginning of the employment relationship until its termination. Otherwise, both the employer and the employee may lose their rights in administrative proceedings and possible legal proceedings.

 

BIBLIOGRAPHY

  • Yeliz Polat, “4857 Sayılı İş Kanunu’na Göre İşçi Özlük Dosyası” (“4857 numbered Labor Law No. According to the Labor Law Worker’s Personal File”), Istanbul University Journal of Institute of Social Sciences (2011)

 

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