practical and legal dimensions of job announcements
TRANSCRIPT
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PRACTICAL AND LEGAL DIMENSIONS OF JOB
ANNOUNCEMENTS
Metin AKKAYA Av. Alper YILMAZ
(HR Professional) (Lawyer)
NOVEMBER 2015
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Greetings,
Job announcements are one of the most basic instruments of the job
searching process. However in certain situations, we come across
incomprehensible contents in the job announcements. For instance, we
observe that while certain enterprises seek “only male candidates”, other
certain enterprises take under evaluation only the candidates who are
graduates of “… University”. We all witness many such announcements of
different nature.
Therefore, we have decided to address together this issue by thinking of
questions such as “how does the Labour Law evaluate the job
announcements? What should the Human Resources Professionals pay
attention while creating a job announcement?”. We have prepared the
following study by taking both the HR opinion and the legal opinion in the
form of Question-Answer based on the examples of announcements seen in
practice rather than lecturing.
We have seen once again in this process that the subject was not handled
immensely both in terms of practice and law. Therefore, we believe that this
study is a significant research for the business world. We hope that this study
will be accordingly guiding for the job announcements to reach a certain
standard via more discussions to be made.
In this project, legal dimension of the job announcements has been prepared
by Attorney-at-law Alper YILMAZ and practical dimension of the job
announcement has been prepared by Metin AKKAYA.
We wish it to be a useful resource.
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LICENCE INFORMATION
The work on “Practical and Legal Dimensions
of Job Announcements” prepared by Metin
Akkaya and Alper Yilmaz has been licensed
with Creative Commons Attribution-
Noncommercial-ShareAlike 4.0 International
License. This work may be downloaded,
shared or cited. It may not be amended or
used for commercial purposes. Legal
actions will be taken for any use other than
specified permissions.
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Table of Contents
LICENCE INFORMATION .................................................................................................................... 2
ACKNOWLEDGEMENT ....................................................................................................................... 5
Who is Metin AKKAYA? ..................................................................................................................... 6
Who is Attorney-at-law Alper YILMAZ? ......................................................................................... 7
INTRODUCTION .................................................................................................................................... 8
SEX DISCRIMINATION IN JOB ANNOUNCEMENTS ....................................................................... 9
HR Opinion: ...................................................................................................................................... 9
Legal Opinion: ................................................................................................................................. 9
PENAL SANCTIONS REGARDING JOB ANNOUNCEMENTS ..................................................... 11
HR Opinion: .................................................................................................................................... 11
Legal Opinion: ............................................................................................................................... 12
PROPORTION OF EXPERIENCE TO AGE IN JOB ANNOUNCEMENTS .................................... 14
HR Opinion: .................................................................................................................................... 14
Legal Opinion: ............................................................................................................................... 14
UNIVERSITY LEVEL IN JOB ANNOUNCEMENTS ............................................................................ 15
HR Opinion: .................................................................................................................................... 15
Legal Opinion: ............................................................................................................................... 15
BASE PAY IN JOB ANNOUNCEMENTS .......................................................................................... 16
HR Opinion: .................................................................................................................................... 16
Legal Opinion: ............................................................................................................................... 16
COMPETENCY IN JOB ANNOUNCEMENTS ................................................................................. 17
HR Opinion: .................................................................................................................................... 17
Legal Opinion: ............................................................................................................................... 17
EDUCATION LEVEL IN JOB ANNOUNCEMENTS .......................................................................... 17
HR Opinion: .................................................................................................................................... 18
Legal Opinion: ............................................................................................................................... 18
WAGE, WORK PLACE AND ENTERPRISE NAME IN JOB ANNOUNCEMENTS ....................... 18
HR Opinion: .................................................................................................................................... 18
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Legal Opinion: ............................................................................................................................... 19
HEIGHT, WEIGHT AND SIMILAR FEATURES IN JOB ANNOUNCEMENTS ................................. 19
HR Opinion: .................................................................................................................................... 20
Legal Opinion: ............................................................................................................................... 20
PHOTOGRAPHED APPLICATION REQUIREMENT IN JOB ANNOUNCEMENTS ..................... 20
HR Opinion: .................................................................................................................................... 20
Legal Opinion: ............................................................................................................................... 20
NON-SMOKING REQUIREMENT IN JOB ANNOUNCEMENTS ................................................... 21
HR Opinion: .................................................................................................................................... 21
Legal Opinion: ............................................................................................................................... 21
COMMUNICATION WITH CANDIDATES VIA SOCIAL MEDIA .................................................. 21
HR Opinion: .................................................................................................................................... 21
Legal Opinion: ............................................................................................................................... 22
MILITARY DUTY COMPLETION REQUIREMENT IN JOB ANNOUNCEMENTS .......................... 22
HR Opinion: .................................................................................................................................... 22
Legal Opinion: ............................................................................................................................... 23
STATING INSURANCE STATUS IN JOB ANNOUNCEMENTS ....................................................... 23
HR Opinion: .................................................................................................................................... 23
Legal Opinion: ............................................................................................................................... 24
CASES SUCH AS STRESS-PROOFNESS, TRAVEL RESTRICTION, ETC. IN JOB
ANNOUNCEMENTS ........................................................................................................................... 24
HR Opinion: .................................................................................................................................... 24
Legal Opinion: ............................................................................................................................... 24
GENERAL EVALUATION AND CONCLUSION .............................................................................. 26
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ACKNOWLEDGEMENT
We sincerely thank to;
Mr. Hasan Baltalar – Industrial Engineer / Management Consultant
Mr. Mustafa Şeker – Sakarya University Human Resources Department,
Research Assistant
Mr. Gökhan Yılmaz – HR Professional / HR Blogger
Attorney-at-law
Enes Yavuz - Lawyer
for their contributions.
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Who is Metin AKKAYA?
Having completed his undergraduate education at the
Business Administration Department, Metin Akkaya
completed his postgraduate education in the field of
“Industrial Relations and Human Resources” at Istanbul
University. He has been experienced in the fields of “Human
Resources” and “Corporate Development“ by receiving
many individual awareness trainings such as “Human
Resources Management”, “Competency Based Interview
Techniques”, “Commentary of the Turkish Labour Code” as
well as “Training of Trainer”, “Basic Psychology”, “General
Psychology” and “Personality Psychology”.
He also added the sectors of Health, Energy, Construction, and Logistics to his
Human Resources career he started in retail selling. Currently, he is the Human
Resources Chief at Ortadogu Corporate Group. He writes columns concerning
Human Resources, Management and Individual Awareness on the blog of
“isveyonetim.com”.
He has created the wage increase survey of 2015 through his own means, made it a
video and posted the “First Video on Wage Increase Survey Report of Turkey”
(http://www.youtube.com/watch?v=656thXl9wTI&list=UUUopneJUgp2YI-qmlWJ87Vw)
Moreover, he is in contact with his colleagues, follows the novelties in the profession
and works as a voluntary trainer by playing active roles in various non-governmental
organisations.
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Who is Attorney-at-law Alper YILMAZ?
Following graduation from the Law Faculty of
Galatasaray University, he worked as a lawyer at
Arthur Andersen and Ernst Young, which are the
prominent independent auditing companies in Turkey.
Then, he continued his professional activities as a self-
employed attorney-at-law.
He works currently as a self-employed attorney-at-law
and provides consultancy services on Labour Law and Industrial Relations as well as
training activities such as seminars, conferences and in-service training at the various
institutions.
Attorney-at-law Alper YILMAZ speaks French and English.
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INTRODUCTION
There is no express provision, which regulates the job announcements, in our
legislation. Accordingly, this subject is a “gray” area when considered from
legal perspective. In terms of practice, we observe that highly subjective
regulations are made in some cases.
In terms of its legal aspect, a job announcement is in fact a kind of “invitation
to offer” made by the employer to the candidates for purposes of
establishment of an employment relation. Its meaning is as follows: The
employer announces the requirements regarding a vacant position to the 3rd
parties with a notice; in other words, he says, “I have such a vacancy, anyone
willing may come and apply”, and the candidate files his/her job application
if he/she meets the requirements.
When we examine the classical labour law, we observe that the emphasis is
given on the provisions concerning the process as from the moment when the
employment relation commences until the moment when it ends, but the
area prior to establishment of employment relation is left “gray” as mentioned
above.
In this study, we will endeavour to evaluate, both in terms of legal and
practical aspects, the expressions found in the announcement texts
commonly seen in practice.
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SEX DISCRIMINATION IN JOB ANNOUNCEMENTS
1. The job announcements state that a “male” or “female” employee is
sought regardless of any distinction of post. Can “being a male or female” be
a requirement in order to perform the work? Does it constitute any
discrimination?
HR Opinion:
According to the legislation and occupational ethics, the female and male
employees should be evaluated under equal conditions. In practice, we
observe that men are preferred in works necessitating physical difficulty and
women are preferred in more desk jobs. I believe that it is better to consider
the nature of work in works where distinction of male or female is stated. For
example, it is prohibited to recruit females in works determined by the
Regulation for the group of heavy and dangerous works. To select males as
the people to be recruited in these works is a legal obligation. When
preparing the job announcements, the restrictive articles of laws and
regulations should be stated, if any. This ensures the quality of the applicants
to improve. To make sex discrimination regardless of the nature of work
damages the trademark of employer.
Legal Opinion:
The basic question necessary to be asked here is, in fact, why a preference
concerning that “male” or “female” staff is sought is made in the
announcement.
When we examine Article 5 of the Labour Code, it is provided for as follows:
“Unless the biological reasons or the reasons concerning the nature of work
necessitate, the employer cannot make different treatment, directly or
indirectly, to an employee by reasons of sex or pregnancy during conclusion
of the employment contract, formation of its clauses, its implementation and
its termination”.
Article 5 implies briefly the following: If the biological reasons or the nature of
work do not necessitate, you cannot say that you do not recruit female or
male candidate.
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Let us give an example for this case.
Consider that male candidates are stated to be evaluated in the engineer
announcement posted by a software company. At this point, what kind of a
biological reason or what kind of a reason arising from the nature of work may
obstruct applications of female candidates? The enterprise is a software
engineer; however, it seeks preferably for applications of male engineer
candidates. If the reason of this preference cannot be justified with the
objective criteria required by Article 5, then it may be concluded that the
announcement has made sex discrimination.
The women are prohibited, pursuant to legislation, to work at some works.
They may be summarized as several works within the scope of dangerous
works. Except for such works, the women may, in principle, work at every kind
of work. For men, there is no such provision as the prohibited occupations.
What can be the reasons concerning “male” or “female” candidate
preference according to the nature of work? This should be understood in
short as the works where one of female or male candidates may be preferred
in terms of manner of performing the work or nature of the work. For instance,
occupation such as long-distance truck driver, obstetrician, construction
worker, warehouseman, crane operator, car mechanic may be regarded as
such.
The basic question at this point is the perception of the expression of the
nature of work as the absolute discretion of the employer in practice. In other
words, it is the approach of a part of employers to the employers with a
mentality such as “Isn’t the work place mine? I may recruit either female or
male candidate. It is none of their business.” The mentality concretised with
these sentences is a basic indicator that “discrimination” is made in the job
announcement.
Article 5 of the Labour Code stated the sanction concerning discrimination as
follows: “Where there is an action in violation of the provisions of the above-
mentioned paragraph as regards the employment relation or the termination
of the employment relation, the employee may demand appropriate
compensation amounting to his/her wage of up to four months as well as
his/her rights of which he/she was deprived.”
It may be argued at this point that no employment relation is established in
fact through a job announcement, that only a job interview is held, that there
exists accordingly no compensation liability.
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It is true that no employment relation is established through a job
announcement. However, while there is a provision regarding prohibition of
different treatment of sex or pregnancy case even in the phase of conclusion
of the contract, it will be against the purpose of the Code in itself to allocate
the compensation liability introduced by the Code to only the discrimination
following establishment of the employment relation. Therefore, the
compensation liability of the employers may be of question in the job
announcements that do not objectively justify the sex preference for the
candidates for biological reasons or reasons arising from the nature of work.
We notice that there is also a provision with respect to the burden of proof in
Article 5 of the Code. Accordingly, the employee is to prove that the
employer has acted discriminatorily against him/her. However; when the
employer puts forth a situation indicating existence of a violation, then the
employer shall be obliged to prove that no such violation exists.
This means the following: When the employee puts forth the information and
documents indicating existence of the violation, then the burden of proof
changes and the employer shall prove that the violation does not exist.
In summary, in announcements including “male” or “female” candidate
preferences;
If the biological reason or the case where the nature of work necessitates
cannot be proved objectively, the job announcement may be in violation of
the provision included in Article 5 of the Labour Code.
PENAL SANCTIONS REGARDING JOB ANNOUNCEMENTS
2. Is there a penal sanction in the EU legislation or the Turkish Criminal
Code with respect to discrimination in job announcements?
HR Opinion:
The sanction in the Human Resources dimension for discrimination in job
announcements is depreciation of employer’s trademark and damage to the
image of the company. Without the need for the written rules concerning
discrimination, the Human Resources should work through the issue and
remove the risks. A department which has Human in its subject should take
due care in order not to fall into this error.
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Legal Opinion:
The most important regulation on this subject is the EU Directive 2000/78/EC of
27 November 2000 establishing a general framework for equal treatment in
employment and occupation. This Directive provides explicitly for the
provisions towards prohibition of discrimination in processes regarding
employment relation including employment. You may access it and other
directives as to work life, in the following link.
http://www.casgem.gov.tr/Casgem/content/conn/casgem/path/Contributio
n%20Folders/csgb/Dosyalar/Kitap/01.pdf
There are extremely detailed provisions on this subject in Germany, too.
According to the General Equal Treatment Statute, which entered into effect
in 2006, it is expressed that no discrimination may be made during the all
employment relation, including recruitment, on grounds of race or ethnic
origin, sex, religious belief or world perspective, disability, age or sexual
identity. Pursuant to the Statute in question, the applicants for an employment
relation are also regarded same as employees. The most remarkable point in
the Statute is perhaps introduction of a special provision concerning that no
job announcements shall be advertised within the scope of the prohibition of
discrimination. In case existence of a violation at this point is determined, the
person has a right to demand compensation. There is also an official
institution named “Anti-discrimination Department” for the control concerning
discrimination. You may access the Turkish explanation of the Statute in the
following link.
http://www.antidiskriminierungsstelle.de/SharedDocs/Downloads/DE/publikati
onen/Wegweiser/agg_wegweiser_tuerkisch.pdf?__blob=publicationFile
Although a bill was also drafted in 2009 in our country in respect of anti-
discrimination, we observe that the said bill has not passed into law, yet.
As regards the Criminal Law dimension of the issue, we observe that there
existed a provision, which was perhaps unknown by many people, in Article
122 of the Turkish Criminal Code until 2014. Accordingly; there was a provision
which read as follows;
“Imprisonment of six months to one year or punitive fine shall be imposed for
a person who,
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By discriminating among people on grounds of language, race, colour, sex,
political opinion, philosophical belief, religion, religious sect and other similar
grounds,
a) Prevents sale or transfer of a movable or immovable property or
performance or utilisation of a service, or attributes recruitment or non-
recruitment of a person to one of the cases listed above,
b) Fails to provide foodstuffs or refuses to perform a service offered to public,
c) Prevents a person to carry out an ordinary economic activity.”
As seen above, it was provided to penalise a person who attributes
recruitment of a person to language, race, colour, sex, political opinion,
philosophical belief, religion, religious sect and other similar grounds. In other
words, the announcements attributing recruitment to sex discrimination in the
absence of an objective ground would be likely to be included in this scope.
However, the requirement to make discrimination with sense of hatred was
introduced through the amendment made on March 2, 2014 to the Criminal
Code.
Through the amendment, the said article of the Code became as follows:
““The person who prevents;
a) sale, transfer or rental of a movable or immovable property, which is
offered to public, to a person,
b) Utilisation of a certain service, which is offered to public, by a person,
c) Recruitment of a person,
d) Performance of an ordinary economic activity by a person,
due to hatred arising from difference of language, race, nationality, colour,
sex, political opinion, philosophical belief, religion or religious sect, and
disability”.
While, in the previous form of the Code, the attribution of recruitment to the
grounds constituting discrimination was sufficient for commission of the crime,
the sense of hatred is also required for commission of the crime according to
the new form of the Code.
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PROPORTION OF EXPERIENCE TO AGE IN JOB ANNOUNCEMENTS
3. Demands such as 10 years of experience and ages between 25 and 35,
where no proportion of experience to age is established, are seen in the job
announcements. How should the proportion of experience to age, which will
be required for job, be in the announcements?
HR Opinion:
Unfortunately, we see that announcements in which proportion of
competency to age cannot be established are advertised. I observe that
these announcements are predominantly advertised by the enterprises
without any human resources units. For unmatchable situations emerge in
consideration of the required competencies and the age limit. I witnessed, in
a job announcement advertised in 2000, that minimum “10 year-experience
of Office 2000” was required. When seeking for a software engineer, a
university had dragged the candidates to concept confusion by requiring for
candidate “competent on programmes and languages of Php, Java, JSF,
MySQL, Html, Html5, CSS3, CSS, JavaScript, Jquery, Actionscript.” While
examining a job announcement again, I found the result of -5 when I
matched the required level of information and years of experience. These
and similar announcements affect adversely the institutional appearance of
the enterprise. It becomes a subject of criticism even in the social media.
Legal Opinion:
The question needed to be asked with respect to the age limitation is why the
employers make such a limitation in the job announcements. Is this limitation
made for a reason arising from the nature of job or on the basis of subjective
criteria?
The most important text to be based on in this subject is the Constitution.
Article 49 of the Constitution expresses expressly that everyone has a right to
work. Article 50 provides, “No one may be employed in such jobs unsuitable
with his/her age, sex and power.”
Besides, we see that Article 2 of the Civil Code provides, “Everyone is obliged
to comply with the rules of good faith while exercising his/her rights and
performing his/her obligations.”
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Therefore, the basic points in recruitment are the nature of job and the
competency of the person for the job. If there is an express disproportionality
between the age and the required experience as expressed in the question,
then a job announcement where arbitrary criteria are considered rather than
a job announcement based on competency may be mentioned. Such
discrimination may be violation of both the fundamental principles stated in
the Constitution and the Rule of Good Faith expressed in the Civil Code.
UNIVERSITY LEVEL IN JOB ANNOUNCEMENTS
4. Some companies state, when seeking for personnel, that they prefer the
graduates of the University of ......, that they do not accept the graduates of
the Faculty of Open University. They sometimes seek to collect candidates by
directly giving a specific university name (such as graduates of METU, Istanbul
Technical University, Bosphorus University). How should this case be
considered under the equal opportunity principle?
HR Opinion:
If the Human Resources unit is the balance between the employee, who is the
internal customer, and the employer, there should also be a balance
between the candidate, who is the external customer and the employer. An
efficient recruitment process should be founded on equality. Failure to ensure
equality in opportunity is unfavourable both in legal and conscience respects.
To state a university directly and to state that he/she does not wish for a
graduate of the Faculty of Open University imply to refuse the qualified and
potentially qualified candidates, as well. I am of the opinion that this practice
is against the opportunity equality.
Legal Opinion:
When considered in legal sense, the important thing is that the candidate has
the competencies concerning the department/area of graduation rather
than the name of the university from which he/she has graduated.
Specification of a university name in the job announcements means any
restriction of application chances against the graduates of other universities.
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Moreover, the name of the university from which the person has graduated
does not mean that he/she has the necessary competencies within the
scope of the required job, either. Accordingly, restriction of people’s job
application right by making university discrimination may be in violation of the
principle of “right to work” expressed in Article 49 of the Constitution.
BASE PAY IN JOB ANNOUNCEMENTS
5. It appears that figures below the pay set by a professional chamber
take place in the announcements advertised for such jobs whose base pay is
set by the professional chamber (for example; it was in an announcement
asked for applications of those candidates who accept a net wage of TRY
1500 while the gross base pay of 2015 for the engineers is TRY 3000). If the
wage will be stated in the announcements, attention should be paid in which
respects?
HR Opinion:
A wage policy should be formed by the Human Resources in support of the
executives. The legal constraints should not be overlooked while forming
these wage policies. Consultancy by the Human Resources mentioning the
likely constraints to the executives is significant in order to be efficient in the
process. To determine the base pay below the one set by the professional
chamber constitutes an unacceptable case in terms of both law and
occupational ethics. If such a case is proved, then a legal fine and
depreciation of the employer’s brand are inevitable.
Legal Opinion:
Base pay is set by the professional chambers for some profession experts (for
example, engineers, etc.). Accordingly, the minimum wage payable for the
people in this group should be the base pay. The purpose of setting the said
base pay is the protection of occupational standards. The job
announcements including wages below the base pay are expressly in
violation of the above-mentioned practice. In case a wage is determined
below the base pay, the Social Security Institution may impose an
administrative fine and demand payment of missing premiums. This may
cause an extremely severe cost on the part of the employer.
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COMPETENCY IN JOB ANNOUNCEMENTS
6. A job announcement requires a competency more than the exigency
of the post (for example, AutoCAD knowledge and leadership competency
were required in a secretarial post. However, no active AutoCAD usage or
administrative responsibility were in question for the post.) How should the
required competencies be specified in the announcements?
HR Opinion:
To require competency more than the exigency of the post shows that the
job analysis is not made correctly and the terms of reference are not created.
The know-how and competencies necessary for the post are determined in a
systematic human resources structure. To require AutoCAD knowledge and
leadership competency for a secretarial post is an indication that the works
uncovered by the post might also be asked to be performed. To expect a
leadership characteristic from a person who does not have a team
management responsibility creates a negative situation for the image of the
enterprise.
Legal Opinion:
The qualities necessitated by a position are objectively certain. Demanding
competencies beyond them will mean aggravation of working conditions.
The question needed to be asked at this point is perhaps for which purpose
the competencies beyond the terms of reference are demanded. If its
purpose is to assign a single person a task that can be objectively performed
by two people, then this case may result later on in problems such as non-
application or aggravation of employment conditions. Within this scope, the
employee may terminate his/her labour contract with a valid reason.
EDUCATION LEVEL IN JOB ANNOUNCEMENTS
7. How should the requirement of university education for the jobs where
university education is not needed be considered in terms of practice (for
example, requirement of graduation from a university of minimum 4 years for
a janitor)?
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HR Opinion:
The education level required from the post should meet the exigencies of the
post. Otherwise, although the person accepts the job at the beginning,
he/she will in the long term lose his/her motivational harmony and start
searching for a new job for him/her. We see that the personnel turnover rate is
high in the enterprises where the motivational harmony is low. For avoiding
this case, an education level in line with the job exigencies should be required
for the candidates.
Legal Opinion:
In legal terms, the principle is advertisement of the job announcements which
are compatible with the department from which the person has graduated
and his/her competency. If the scope of post necessitates know-how and this
know-how is directly proportional with the department from which he/she has
graduated, then the requirements in the announcement may be deemed
reasonable. However; if the terms of reference of the post and the
graduation requirement are not proportional, then the announcement may
be mentioned to bear a subjective nature.
WAGE, WORK PLACE AND ENTERPRISE NAME IN JOB
ANNOUNCEMENTS
8. Is it compulsory to write wage, work place and enterprise name in the
job announcements?
HR Opinion:
Work place and enterprise name are some of the factors of the motivational
harmony. The work place is of importance for the work comfort and the
enterprise name is of importance for the sense of belonging. We see that the
work place is generally shared in the announcements. Not writing the
enterprise name in the announcements may be a strategic decision. We see
that if the brand value is high, many irrelative applications are filed and the
qualified applications are lost among them. It may be preferred not to write
any name for the applications by solely those having the qualities of the post.
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The wage is the primary one among the most sensitive issues for the
employers. It has a vital importance since the basic income of a large part in
Turkey is a monthly wage. The wages are qualified as “confidential
information” for the enterprises. It is not preferred to be shared with public as it
is in the status of confidential information. Those enterprises, which have set a
systematic policy, mention the wages (or how the wage policy is formed) and
the fringe benefits during the interview. The candidates are generally
informed of the complete wage packet at the employment offer stage.
Some enterprises, at least, started to write wage in their announcements;
however, it is not at the satisfactory level.
In summary, there is no necessity in practice to write wage, work place and
enterprise name. The desired information may be shared in line with the
decisions to be given by the enterprise.
Legal Opinion:
The candidate applies for a job according to the compatibility of the
announcement with his/her own conditions. Therefore, the candidate has to
have some information about the work place and the working conditions. The
work place, the enterprise name and the wage are the basic elements that
the employee may consider at the application stage. It is extremely important
to include basic information on especially transportation and working
conditions. Nevertheless, non-application or change, by the employer, of the
conditions included in the announcement shall have the meaning of non-
application of working conditions for the candidate accepted for a job, and
may cause the employee to terminate the contract with a valid reason at a
later stage.
HEIGHT, WEIGHT AND SIMILAR FEATURES IN JOB ANNOUNCEMENTS
9. Qualities such as height and weight standards, proper physical
appearance and presentableness are required in the job announcements.
Can these features be compulsory for a post?
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HR Opinion:
Pursuant to the opportunity equality principle, all candidates should be
evaluated at the same standard. However, distinctive features likely to be
important in the practice of profession may be required for the candidates.
For example, some distinctive features may be required for recruitment of a
flight attendant or a security guard. These features should be determined
objectively and required for the candidates accordingly. A contrary case will
give rise to a subjective process.
Legal Opinion:
Some standards such as height and weight may be demanded for the
applicants due to the nature of job. For instance, for a flight attendant or a
security guard, etc. However, demanding such requirements other than by
reason of the nature of job may cause subjective evaluations.
PHOTOGRAPHED APPLICATION REQUIREMENT IN JOB
ANNOUNCEMENTS
10. Some announcements mention that non-photographed applications
would not be considered. Is there a necessity to file photographed
applications for the announcements?
HR Opinion:
I would like to receive training immediately if there is someone who makes a
character analysis and can evaluate job compatibility by examining a
photograph!!! We see that a photo is asked in the announcement requiring
care to physical appearance as a distinctive feature. However, the photo
should not be the main criterion for determining job compatibility of a person.
Legal Opinion:
The important point is the person’s application in a way to indicate the
competencies specified in the announcement. The employer should anyway
make his/her first evaluation according to these competencies. Accordingly,
it is not in the nature of a reasonable practice to require photograph for the
job application while the competencies are needed to be subjected to
primary evaluation.
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NON-SMOKING REQUIREMENT IN JOB ANNOUNCEMENTS
11. The enterprises specify that they seek for non-smoking candidates as a
pre-application requirement. May non-smoking be required as a job
exigency?
HR Opinion:
Smoking is now tackled comprehensively in the enterprises. Its effect within
the office hours, its effect on the employee’s productivity and even its effect
on the work environment are discussed from time to time. I think that it is
beneficial to research about why the enterprises seek for non-smoking
personnel. An enterprise might wish to encourage its employees not to smoke
as a social responsibility. It might experience loss of production because of
frequent smoking breaks within the office hours. Or the cigarette smell might
create discomfort when the excessively smoking personnel approach his/her
colleagues. Non-smoking may not be the main criterion to perform the job,
but it will be beneficial to understand why it is required in the enterprise. It is
already harmful to health!
Legal Opinion:
As known, smoking is prohibited in closed areas. Accordingly, the employee
may not smoke in the work place in the zones other than those determined in
compliance with the legal obligation. Moreover, there may be such
perception that those having a smoking habit might frequently wish to leave
his/her work and smoke. However, smoking might give rise to problems as
regards the order of work place due to reasons arising from hygiene, health,
etc. Accordingly, such a secondary requirement by the employer may be
considered reasonable for the nature of job or the order of the work place.
COMMUNICATION WITH CANDIDATES VIA SOCIAL MEDIA
12. May the job applicant be contacted other than e-mail message or
telephone call by sending private message from social media means such as
Facebook and twitter? Or may a friend or connection request be sent to the
candidate via social media?
HR Opinion:
Recruitment via social media has come to the fore very rapidly in the Human
Resources, however the habits seem not to change in the short term. I do not
find ethical to contact applicants via any means other than the contact
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information included in their CV’s. However, if the candidate has specified
his/her social media accounts in his/her CV and stated that they may be
used for communication, then I consider no harm in usage of them. Some
enterprises use social media for headhunt. I think that it is advisable to
contact in social media by sending messages, in a way not to disturb the
candidate and under the rules of conduct. For the social media might be
used for job purposes as well as for private sharing. I am of the opinion that it
will be better to communicate via message as we cannot predict for which
purposes the candidates use the social media.
Legal Opinion:
When applying for the announcement, the candidates generally specify their
phone numbers and e-mail addresses as communication means.
Accordingly, it is a principle to reach them via these communication means
declared by the candidate. There is no reasonable advantage on the part of
the employer to contact the candidate via communications means other
than those declared by him/her or to send connection invitation, without
his/her request. For the candidate conveys the employer the procedure
needed to be contacted him/her, by declaring his/her contact information to
the employer. Accordingly, contacting the candidate via communication
means specified by him/her is extremely important as regards an institutional
functioning, as well.
MILITARY DUTY COMPLETION REQUIREMENT IN JOB
ANNOUNCEMENTS
13. May the requirement “to complete his/her military duty” be laid down
in the announcements for the male candidates?
HR Opinion:
The military duty is the compulsory duty of every Turkish male citizen. The
enterprises’ preference of people who have completed their military duty
concerns the continuity of the work. For instance, a construction enterprise
has a 1-year project but the candidate will join the army to perform the
military duty. The candidate does not have a right of postponement
anymore. It is inevitable that the Human Resources prefer a person, who has
completed his/her military duty, for the sustainability of the Project. Not having
completed his/her military duty does not create any obstacle for performing
the job or applying, however it is an important factor in evaluation. The
deserters may not be employed in the enterprises according to law.
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Legal Opinion:
Pursuant to the Military Criminal Code, criminal sanction is imposed for
employing people who are deserters. However, the military duty of a person
might also be postponed for a certain period of time due to grounds such as
education or health reasons. Accordingly, it is reasonable for the employer to
demand documents indicating his military status from the candidate.
However, non-preference of also those, whose military duty is postponed,
within the framework of the job announcement is an issue needed to be
considered separately. The basic provision of the Constitution is that everyone
has a right to work. There might be posts requiring to work at a fixed term
project or for a minimum duration owing to the basic function of the job. The
postponement period might not be sufficient for these posts. Accordingly,
although laying down military duty completion requirement for such jobs may
be considered reasonable, it will be appropriate, for other jobs, not to make
any subjective discrimination in respect of application between those who
have completed their military duty and those whose military duty is
postponed. Consequently, in cases where the duration of job cannot be
objectively known, it will be a more reasonable approach not to adopt a
practice towards restriction of applications by the candidates whose military
duty is postponed, when also considered that the employment relation might
end by reasons such as termination for the candidates who have completed
their military duty.
STATING INSURANCE STATUS IN JOB ANNOUNCEMENTS
14. Is it compulsory to state in the job announcements that the person will
also have an insured employment?
HR Opinion:
Every individual working in the Republic of Turkey is covered by the social
security system. To insure an employee is not a virtue, but an obligation.
However, we observe in practice those cases where the employee is not
insured by paying wage in person, the social security support premiums are
not paid especially for the retired employees, the employee is paid a high
wage but insured on the basis of minimum wage. Some artisan enterprises
might put up announcements such as Insurance+Transportation+High Salary
on their windows in order to give confidence to the candidates. These
announcements show that some enterprises perceive insurance as virtue. To
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state, “I will employ the applicant with insurance” in the announcements will
damage the company reputation.
Legal Opinion:
By law, it is compulsory to notify every employee to the Social Security
Institution and pay his/her premiums. Accordingly, it is not compulsory to
specify these matters in the announcements. Besides, inclusion of such an
expression in the announcements is not a fringe benefit or favour provided to
the employee, but discharge of a legal obligation in itself.
CASES SUCH AS STRESS-PROOFNESS, TRAVEL RESTRICTION, ETC. IN
JOB ANNOUNCEMENTS
15. May expressions such as “who is compatible with intense work
schedule, is stress-proof and does not have any travel restrictions” be
included in the job announcements?
HR Opinion:
First of all, let’s agree on the following subject: There is no job which is not
intensive, and does not entail stress. The degree of the stress and difficulty
may vary due to the responsibilities. Emphasis on “being compatible with
intense work schedule and stress-proof” in a job announcement explains that
it will be confronted with a high degree of stress in performance of the job.
This specification provides convenience for the candidate in using his/her
option to apply or not to apply.
The travel restriction concerns the job exigency. This specification is highly
important for the candidate who will apply. Candidates who are newly
married, have a young child or cannot get permission from his/her spouse,
etc. might not wish to travel for various reasons. Non-preference of this job at
the job application process by the candidates who cannot travel facilitates
the process for both the enterprise and the candidate.
Legal Opinion:
Every occupation may bear an intense work schedule or stress in itself. Such
expressions in the announcements are of the subjective nature. If the point
needed to be understood from the intense work schedule is the frequent
overtime working in the work place, then the candidate has a right to “ask
the employer whether or not it is worked overtime in the work place and
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whether or not the overtime wage is paid, if it is worked overtime.”
Accordingly, the said expressions are usually secondary and stereo-typical
declarations which do not affect the merit of the job.
The travel restriction issue concerns the terms of reference. If the employee
needs to travel frequently as part of the work he/she will perform (for
example, sales representative, etc.), this should be definitely specified in the
announcement. Specification, in the announcement, of the essential matters
likely to be a part of the post is highly important to establish a sound
employment relation. The travel requirement included in the announcement
carries such value that the candidate knows the terms of reference
concerning the post at the application stage.
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GENERAL EVALUATION AND CONCLUSION
The main reasons that prompted us to write this study were the absence of
rules regulating the standard of the job announcements and the highly
subjective practices.
The job announcement laying down demands including discrimination rather
than the competencies of the candidates damages seriously the opportunity
equality concerning employment possibilities, which are anyway limited.
Absence of express provisions in this issue in our legislation results unfortunately
in the arbitrary practices.
The main criterion for establishing a sound employment relation is
competency and the working conditions dependant on this competency
should be provided to the people.
We observe that the announcements prepared in line with the objective
criteria instead of the subjective criteria affect positively the establishment
and continuation of a sound employment relation between the candidates
and the employers.
Consequently, we believe that the more proper the job announcements are,
the more proper the employment relation will be.