Employment contract is defined as a contract whereby the employee undertakes to perform a work under supervision of the employer and in return the employer undertakes to pay a wage. The employment contract can be made in writing or verbally. The capacity to be a party to this contract is explained by the juridical capacity defined in the Civil Code. To enter a contract, a person must have mental capacity sufficient to understand the nature and consequences of her actions. If mental capacity is absent, the contract is voidable by the person lacking capacity. Any adult who has the power to discriminate and is not restricted can freely enter employment contracts, with the permission of his guardian, on the subjects he desires within the limits of this freedom from the Constitution.
Employment contracts can be made in the types of fixed term, opened-ended, part-time and full-time employment, on-call employment, temporary employment, seasonal employment, team employment, contracts with trial period. An employment contract deemed legally valid can be terminated without notice (agreement of the parties, death, expiration of the term in fixed-term employment contracts, immediate termination) or with notice (notification of termination by the employer or employee). In this article, the termination of the employment contract with the notice of termination, the termination of the contract by the employer and the employee with rightful termination are discussed.
1. Termination of Employment Contract with Notice
Notice of Termination
There are 3 types of notice of termination; termination without rightful cause upon notice, rightful termination upon notice and collective redundancy.
Termination Without Rightful Cause upon Notice, It is the termination of the opened-ended employment contract of the worker, which is not subject to the provisions of employment security, by complying with the notices determined according to the seniority of the employee, by both the employee and the employer, with a declaration of will on this matter, which is not subject to reason and form, with results as of the end of the notification period. This type of termination is only envisaged in opened-ended employment contracts, and for ease of proof this contract it suggests appropriate to make it in writing. It is regulated in Articles 17-22, 29 of the Labor Act. However, the legislator has also introduced termination prohibitions in order to prevent unlawful termination of the contract; it has regulated in which cases the notification of termination without valid reason cannot be made. Although not limited in number, workplace union representatives, union members and female workers are protected in the use of their right to seek their rights and in terminations related to illness and accident.
Rightful Termination upon Notice; an employee could file for a reinstatement litigation in order to be re-appointed following his termination by the employer only if the employee is working for that employer for at least six months, if the employment contract is for an undesignated period, if the workplace employs more than thirty employees, and if the employee is not an employer representative. For a termination to be valid, the employee must be served a written termination notice and this notice must clearly indicate the reason for termination. To determine and assert that an employee has poor performance, an employer must make a fair evaluation, based on objective criteria by following the method established in common legal practice. As a matter of fact, as a reflection of the principle of last resort (ultima ratio), the employee has been given the right to file a lawsuit regarding the invalidity of the termination and reinstatement within one month from the notification of this termination.
An example of the employer's valid reasons arising from the behavior of the worker; the employer has the right to terminate the employment contract for valid reasons, in case the employee performs inadequate or insufficient work despite warnings, damages the employer's property, makes statements, provokes friends, is absent or arrives late.
Collective Redundancy is arranged in Article 29 of Labor Law. Accordingly, the employer; by making the necessary notifications within the periods stipulated by the law, collective redundancy can be as a result of economic, technological, structural and similar enterprises, workplaces or the requirements of the job.
Without Notice - Immediate - Termination
Termination without notice is the immediate termination of the employment contract by one of the parties for justifiable reasons. The party with a just cause must declare its will. The purpose of this type of termination is to enable the party, who cannot be expected to continue the contractual relationship in accordance with the objective good faith rule, to get rid of the contract.
Reasons for Termination Without Notice by Employer:
Employee’s illness or accident: It means that an employee’s illness and having an accident due to his own intention and not living in a tidy manner. In this case, the employee who does not come to that workplace for 3 consecutive days or for a total of 5 days in 1 month can be dismissed by the employer by the method of termination without notice. The important point here is that the employee will be entitled to severance pay in the terminations made based on this reason.
Maternity Leave of Employees: It is forbidden for pregnant employees to be worked for a total of 16 weeks, 8 weeks before birth and 8 weeks after. After the prohibition periods and the timed termination notice periods stipulated in Article 17 of the Labor Law. Employer can dismiss the worker for this reason. The worker is also entitled to severance pay in case of termination based on this reason. However, terminations made unjustly based on the pregnancy of the employee, in violation of the prohibition of discrimination, are not valid, and the worker also has the right to demand compensation for bad faith or discrimination.
Incurable Disease of Employee: The employer, with whom the employee is regularly, closely and directly in contact, suffers from a serious contagious disease. If the employee has a disease that makes it impossible to continue working and this situation is documented with a medical report, the employer can use the right of termination without notice immediately. To use this right, the employer has to comply with the periods stipulated in the law. In this case, the worker has the right to demand severance and notice pay.
Non-Compliance with the Rules of Ethics and Good Faith: In these cases, the principle of numerus clausus is not valid, the law has been regulated in terms of being predictive. As a matter of fact, in the title of Article 25/II of the Labor Law, the expression 'and the like' is included:
Employee misleads the employer.
Employee commits an act or uses offensive words which injure the honor and dignity of the employer, or a member of the employer’s family.
Employee commits sexual harassment against a fellow employee.
Employee assaults or threatens the employer, a member of the employer's family, or a fellow employee. The employee comes to the workplace under influence of alcohol/drugs or uses alcohol/drugs when present in the workplace.
Employee's behavior that does not comply with honesty and loyalty, such as abusing the employer's trust, stealing, revealing the employer's professional secrets.
Employee commits a criminal offence in the workplace which is punishable by seven days’ imprisonment at minimum without probation.
If the employee does not continue to work for two consecutive working days or two working days after any holiday in a month, or three working days in a month, without taking permission from the employer or without a just cause.
Employee refuses to perform his or her duties after being warned.
Employee’s own will or negligence endangering the safety of the work, causing damage and loss to the machines, installations or other goods and materials that are the property of the workplace or that are not the property of the workplace, or that it cannot pay the amount of the thirty-day wage.
Force Majeure: Occurrence of a compelling event which causes suspension of work in the workplace for more than 1 week. (Ex: earthquake, flood) If the force major occurred in the workplace, the employee has the right to terminate for this reason.
Custody or Arrest of Employee: If the employee's absence for this reason exceeds the notification periods regulated by Article 17 of the Labor Law, the employer can terminate the contract immediately for this reason.
As a result, the concept of valid reason arising from the behavior of the employee, Mr. Mehmet UÇUM defines it as follows: “It is a situation that does not contain serious and serious faults to be considered just cause but consists of faulty actions that create negativity to the extent that prevents the continuation of the business relationship and makes the termination of the employment contract socially valid.’’
Reasons for Termination Without Notice by Employee:
-Due to the nature of the work, the performance of contractual duties poses a danger to health or life of the employee.
-The employer or a fellow employee, with whom the employee is regularly, closely, and directly in contact, suffers from a serious contagious disease.
Non-Compliance with the Rules of Ethics and Good Faith: It should not be forgotten that the principle of numerus clausus is not valid, and different reasons may be encountered before the judiciary according to each case.
Employer misleads the employee at the time when the contract is made, by giving false information or making false statements with regards to essential terms and conditions of employment.
Employer commits an act or uses offensive words which injure the honor and dignity of the employee, or a member of the employee’s family.
Employer commits sexual harassment against the employee.
Employer assaults or threatens the employee, or a member of the employee's family. The employer incites, induces or forces the employee, or a member of the employee’s family, to commit an illegal act.
Employer commits a criminal offence against the employee which punishable by imprisonment.
Employer makes groundless and severe allegations against the employee which injure the employer's honour or dignity.
Employer does not calculate or pay the wage of the employee in accordance with the law and the terms of the contract.
Force Majeure: Occurrence of a compelling event which causes suspension of work in the workplace for more than 1 week. (Ex: earthquake, flood)
Employee who duly terminates the employment contract for one of the above reasons has the right to demand severance and notice pay. At the same time, the employee has the right to use the job search period. Because the new job search permit is a right granted to the worker to be used within the notification period in opened-ended employment contracts, regardless of which party terminates the contract. An employee who terminates the contract by himself just because he has found a job cannot benefit from this right.
2. Objection to Termination of Employment Contract and Its Consequences
According to Article 20 of the Labor Law, the employee whose employment contract has been terminated has the right to object the decision and the right to substitute a reemployment lawsuit.
“Employee who alleges that no reason was given for the termination of his employment contract or who considers that the reasons shown were not valid to justify the termination shall be entitled to lodge an appeal against that termination with the labor court within one month of receiving the notice of termination. If there is an arbitration clause in the collective agreement or if the parties so agree, the dispute may also be referred to private arbitration within the same period.
The burden of proving that the termination was based on a valid reason shall rest on the employer. However, the burden of proof shall be on the employee if he claims that the termination was based on a reason different from the one presented by the employer.
The court must apply fast-hearing procedures and conclude the case within two months. In the case the decision is appealed, the Court of Cassation must issue its definitive verdict within one month.”
In case of termination of an open-ended employment contract without justified or valid reason, the employee may file a lawsuit for reemployment or claim labor receivables. The burden of proving that the termination was made for a valid reason rest with the employer. If the court decides that the termination was made for an invalid reason or that no valid reason has been given, the employer has to start the employee back to his work within one month.
If the employer does not start the employee to work within 1 month; The worker must be paid a minimum of 4 and a maximum of 8 months compensation.
The form and establishment of the employment contract and the determination of its type and content within the freedom of contracting are regulated by law to a certain extent. However, the legislator has not determined a limited number of reasons for termination of the employment contract by protecting both the employer and the employee, therefore, the reason for termination and validity of each individual case must be evaluated.
Av. Dicle SEZER
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