According to the Employment Code of Turkey No.4857, termination of the employment agreement is possible with two legal ways: (i) periodical termination with valid reason and (ii) immediate termination with rightful reason.
PERIODICAL TERMINATION OF THE EMPLOYMENT AGREEMENT WITH VALID REASON BY EMPLOYER
Termination of the Employment Agreement by employer which the employee who is with in employment security and not representative of employer, is one of the parties of it, can be possible only with valid reason related to the performance or behaviour of the employee or related to the business of the workplace.
Valid termination reasons are not regulated in the Employment Code or other codes one by one. The courts judge the termination whether valid or not according to the nature of business, nature of the reason and Supreme Court practices. Therefore, we don’t mention all the valid termination reasons one by one in this article, but we are legal counselling to our clients related to their business, their processes whether the termination is valid or not and litigate for their situation.
REASONS WHICH ARE NOT ACCEPTED AS VALID
Although the valid termination reasons are not regulated one by one, the Employment Code of Turkey No.4857 regulate the following cases as never be accepted as valid reason:
- Membership of union and being in union activity within working hours with the consent of employer or after working hours,
- Being a workplace representative of union,
- Applying to judicial or administrative authorities against employer or joining the current application to fulfil the legal or contracted obligations,
- Reasons related to race, colour, civil status, family obligations, pregnancy, birth, religion, political view, etc,
- Absence for women employees in birth and maternity leaves which the working is banned,
- Absence due to the disease or the accident by 6 weeks,
EMPLOYMENT SECURITY FOR EMPLOYEES
In order that the obligation of valid termination reason arise, the employee should be within the employment security. The employment secured employee is employee who
- works in a workplace that at least 30 employees work and
- has at least 6 months seniority.
To determine the 30 employee criteria, the total of all employees that work in main office or all branches is considered. So, even the number of employees in the workplace where the employee “A” works, is under 30, if the total number employees in all locations is more than 30, the employee “A” may be within the employment security.
To determine the 6 months seniority criteria, terms which the employee worked in the different workplaces of employer on different times is combined. There is no 6 months seniority obligation for the employees who work underground.
The Legal Situation of the Representative of Employer
The Representative of Employer who
- conduct all the business and their vices and
- conduct all the workplace and has authority to employ and dismiss the employee
are out of the scope of the employment security
TERMINATION DUE TO THE PERFORMANCE OR BEHAVIOUR OF EMPLOYEE
Except the following immediate termination cases with rightful reasons regulated in the Article 25/II of Employment Code of Turkey No.4857, before termination the employment agreement by employer due to the performance or behaviour of the employee, the employer should take employee’s statement. According to the Supreme Court practices, the reasonable time should be presented to the employees to prepare their statements. Also, according to the Supreme Court practice, the reasonable time is accepted as at least 3 working days.
Taking the statement is not sole obligation for the termination due to the performance or behaviour to be valid. According to the Supreme Court practices, the termination should be fitted to the principle of ultimate remedy stated below and the performance or behaviour should bring to the point that working is not possible anymore, or the employer should educate the employees to set their performance or behaviour right, etc. If these obligations are not applied, the termination cannot be accepted as valid.
TERMINATION DUE TO THE REASONS ARISING FROM WORKPLACE
To terminate the employment agreement with valid reasons arising from workplace such as downsizing or closure of workplace, changing the field of operation, there is no obligation to take the statement such as termination due to the performance or behaviour. But the employer should obey the principle of ultimate remedy.
You may find our article related to the termination due to the downsizing, and how the ultimate remedy principle can be applied from here.
THE PROCESS OF VALID TERMINATION
To terminate the employment agreement with valid reason, the written termination notice should be delivered to the employee and the reason of the termination should be enounced clearly without causing the hesitation.
If the employee works for the employer more than 1 year, the employer should pay the severance pay to the employee in case the valid termination.
For valid termination of the employee who the 2 months’ probation period is not provided, or this period are exceeded, the employer should notice the termination to the employee before the following periods or make the payment (the payment of notice) in the response of the following periods:
- For the employees whose seniority is less than 6 months; 2 weeks,
- For the employees whose seniority is between 6 months – 1,5 years; 4 weeks,
- For the employees whose seniority is between 1,5 years – 3 years; 6 weeks,
- For the employees whose seniority is more than 3 years; 8 weeks
It is crucial to state that the employees don’t have to be within employment security in case of valid termination to have right to have severance pay and to notice before the needed period or pay the notice payment. All the employees who are in the abovementioned terms have right to demand the severance pay and notice pay in case of valid termination. The employment security only ensures employees to have right to file a reinstatement case stated below.
Unless making the written notice of termination or mentioning the termination reason clearly in the notice of termination or giving the reasonable term and taking the statement before the termination except the situations regulated in the Article 25/II of Employment Code, the termination cannot be accepted as valid.
THE PRINCIPLE OF ULTIMATE REMEDY (ULTIMA RATIO)
The principle of ultimate remedy is the principle which is not regulated in the Code but according to the Supreme Court practices, it should be considered in case of valid termination, otherwise the termination is not accepted as valid. Therefore, the valid termination should be the ultimate remedy, if any solution to protect the employee before termination or to solve the problem, this should be applied, and despite applying this solution, if it is no solved, the termination may be considered. As the examples of these solutions:
- If any employee has a bad behaviour that affect the work or workplace negatively; first, disciplinary punishments should be given to the employee such as warning, reprimand and the employee should be provided training not to do this behaviour. To make these punishments affect for the ultimate remedy principle, we recommend having a disciplinary regulation for workplace included in which situations the punishments are given and this regulation should be notified to the employees. Also, if it is possible to assign the employees in the other departments in the workplace or other locations in case the disciplinary punishments don’t solve the problems, this assigning should be offered to the employees.
- To evaluate the performance of the employee, first the concrete targets of the performance should be notified to the employee. If the employees cannot reach to the targets at first times, they should be provided the training about how to increase the performance. In case the performance targets are not reached despite the trainings, if it is possible to assign them in the other departments or locations, this assigning should be offered to them for the ultimate remedy principle.
- In case of termination due to the downsizing or other business reason, first assigning to another department or location should be offered to the employees. For example, if the employer closes any branch of business, he/she should offer to the employees who work in this branch to work in different branches. If one of the departments of the factory is closed, the employer should offer to the employees who work in this department to work in different departments of the factory. You may find our article related to termination due to the downsizing or other business reason in details from here.
If the employer doesn’t take abovementioned or similar steps and terminate the employment agreement directly, this termination cannot be accepted as valid.
THE IMMEDIATE TERMINATION OF THE EMPLOYMENT AGREEMENT WITH RIGHTFUL REASON BY THE EMPLOYER
According to Employment Code of Turkey No.4857, the employer has, for some cases, right to terminate the employment agreement immediately with rightful reason without waiting the notice period and without regarding the principle of the ultimate remedy. These cases are as follows and limited by the Code:
Health Reasons (Art. 25/I of Employment Code No. 4857)
- Longer than successive 3 days or 5 working days in a month absenteeism because of disease or disability caused by the employees’ intention or their untrim living or inebriety,
- Except the reasons above, 6 weeks exceeding of the notice period due to the disease, accident, birth, pregnancy, (in case the birth and pregnancy, this term starts with the ending date of maternity leave. For the period the employee doesn’t work, the employment agreement and the duty of paying wages are suspended.)
The Acts Offending Good Moral and Good Faith (Art. 25/II of Employment Code No.4857)
- Although the employee doesn’t have the required qualifications and conditions (diploma, certificate etc.) for the essential points of the employment agreement, claiming these qualifications and conditions to have, giving information contrary to the facts, and thus, misleading the employer,
- Commending or acting that injure the reputation of the employer or his/her family, notifying or accusing injured the reputation,
- Sexual harassment to the employer or other employees,
- Picking on the employer or his/her family members or other employees,
- Coming to the workplace under the influence of drugs or using the drugs in the workplace,
- Acting against good faith and commitment such as abusing trust, robbery, disclosing the trade secret, etc.
- Committing a crime that caused to be punished more than 7 days and not postponed,
- Without getting permission and without reasonable cause, absenteeism of
- The successive 2 working days or,
- Any 2 working days which is after any holiday in one month or,
- 3 working days in one month,
- Insisting on not making the duty to be obliged despite being reminded,
- Endangering the work safety at own request or omitting,
- Cause loss and damage the machines, installation and wares which are belongs to the workplace or being in the workplace for taking, up to the 30 days wage of the employee,
The Acts of Providence (Art. 25/III of Employment Code No.4857)
- Arising any reason caused the employee preventing to work for more than a week,
Custody and Arrest (Art. 25/IV of Employment Code No.4857)
- Exceeding absenteeism term by the notice period of the employee in case taking into custody or arresting the employee,
Final Term to Immediate Terminate with Rightful Reason
The employer may terminate the employment agreement for “Acts Offending Good Moral and Good Faith” with rightful reason in 6 days from finding out and however in one year from the action. If these terms exceed, the terminations cannot be accepted as rightful. But if it is detected the employee provide financial opportunity with the action which is reason of the termination, one year condition is not stipulated.
Compensation on Immediate Termination with Rightful Reason
In case the termination with rightful reasons stated above; because the employer has right to terminate the employment agreement immediately, the employer is not obliged to allow for notice period or pay the notice payment.
If the employer terminates the employment agreement due to the “Acts Offending Good Moral and Good Faith” according to Article 25/II of Employment Code stated above, the employer is not obliged to pay the severance pay. Except the “Acts Offending Good Moral and Good Faith”, if the employer terminates immediately with rightful reason due to the other cases regulated in Article 25 of Employment Code, the employer is obliged to pay severance pay to the employee.
LEGAL RESULTS OF THE TERMINATION WHICH IS NOT VALID OR RIGHTFUL
If any valid or rightful reason is not stated to the employee or if any reason is stated but it is not rightful according to the Art 25 of Employment Code or valid, employee or her/his attorney at law has right to apply to the Mediation Office of where the workplace is located to demand reinstatement in 1 month from the notification of the termination.
Referring to the application, the Mediation Office assigns a Mediator to settle the dispute demanding reinstatement between employee and employer and this Mediator has 3 weeks period to settle the case.
If the parties cannot settle before Mediator in this period, the last record is made stated that the parties have not able to settle and in 2 weeks from the making date of this record, reinstatement case in the Employment Tribunal can be filed. The parties may apply to the special arbitrator in the same period if they are agreed upon.
In reinstatement cases, the burden of proof about what the termination is valid or rightful is belong to the defendant employer. Therefore, the tribunal costs for proof (expertise etc.) should be paid by the employer. If the employer doesn’t pay these costs in the period that the court is prescribed, it is considered that the employer cannot prove their claims.
After examining, if the court finds the termination is not rightful or valid, they rule reinstatement of the employee referring to the application of the employee. In 10 days from the finalization of the reinstatement decision, the employee has right to apply for reinstatement through the public notary to the employer. The employer should re-engage the applicant employee in 30 days from the notification of reinstatement through the public notary. If the employee is not re-engaged in this period, the employer should pay the compensation which is between 4 months and 8 months fee of the employee that has been ruled during the reinstatement case by 4 months idle time fees to the employee.
In case the employer accepts the reinstatement application in 30 days, but the employee doesn’t start work at the determined date, the termination is considered as valid according to the Supreme Court practices and the severance pay and the notice payment should be paid to the employee if they have not been paid. But in this situation, the employer doesn’t have to pay not re-engaging compensation ruled during the reinstatement case and by 4 months idle time fees to the employee.
CONSEQUENTLY
All the termination reasons of Employment Agreement should be considered at their own situations and found whether it is rightful, valid, or not. We are checking all types of documents such as labour disciplinary regulation, performance targets, training documents, termination process and whether termination is legal or not and we are legal counselling according to the results of checking the documents.
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