Employment Contract
An employment contract is an agreement in which one party (the employee) undertakes to perform work in a dependent manner, and the other party (the employer) undertakes to pay wages. In our legal system, an employment contract established between the employee and the employer may be concluded for a definite or indefinite term. The employee may terminate this contract by resigning when they wish to leave the job. The employer, on the other hand, must terminate the contract in accordance with the specified periods and conditions depending on the type of contract; otherwise, legal liabilities may arise for the employer.
Types of Employment Contracts (Fixed-Term – Indefinite-Term)
According to Article 11 of the Labor Law No. 4857, employment contracts may be concluded for a definite or an indefinite term. Pursuant to this article:
“If the employment relationship is not established for a specific period, the contract shall be deemed to be of indefinite duration. A written employment contract concluded between the employer and the employee based on objective conditions—such as fixed-term work, completion of a specific task, or the occurrence of a particular event—shall be considered a fixed-term employment contract.
A fixed-term employment contract cannot be concluded consecutively (in a chain) more than once unless there is a substantial reason. Otherwise, the employment contract shall be deemed to be of indefinite duration from the outset.
Chain employment contracts based on a substantial reason shall retain their fixed-term nature.”
Termination of the Employment Contract by the Employer for a Valid Reason
Pursuant to Article 17 of the Labor Law No. 4857, “Before terminating indefinite-term employment contracts, the situation must be notified to the other party.” The relevant notice periods are set out in the continuation of the article:
“Employment contracts shall be deemed terminated;
a) For an employee whose employment has lasted less than six months, two weeks after the notification is made to the other party,
b) For an employee whose employment has lasted between six months and one and a half years, four weeks after the notification is made to the other party,
c) For an employee whose employment has lasted between one and a half years and three years, six weeks after the notification is made to the other party,
d) For an employee whose employment has lasted more than three years, eight weeks after the notification is made.”
These periods are minimum periods and may be extended by agreement. If the employer fails to comply with the notice requirement, they are obliged to pay compensation equivalent to the wages for the notice period. The employer may also terminate the employment contract by paying the wages for the notice period in advance.
Basing the Termination on a Valid Reason
Pursuant to Article 18 of the Labor Law No. 4857: “In workplaces employing thirty or more employees, an employer who terminates the indefinite-term employment contract of an employee with at least six months of seniority must rely on a valid reason arising from the employee’s competence or conduct, or from the requirements of the enterprise, workplace, or job. The seniority requirement shall not apply to employees working in underground jobs.”
Requirement of Written Form and Clarity in the Termination Notice
The most fundamental procedural rule that employers must comply with when terminating an employment contract is to make the termination notice in writing. Pursuant to Article 19 of Labor Law No. 4857, the termination notice must not only be in written form but must also clearly and precisely state the reason for termination.
Article 19 – The employer is obliged to provide the termination notice in writing and to clearly and precisely state the reason for termination.
An indefinite-term employment contract of an employee cannot be terminated for reasons related to the employee’s conduct or performance without first obtaining the employee’s defense against the allegations made. However, the employer’s right to terminate in accordance with the conditions set out in subparagraph (II) of Article 25 is reserved.
Employee’s Defense Procedure
In terminations based on the employee’s conduct or performance, obtaining the employee’s defense before termination is a legal requirement. Terminations carried out without obtaining the employee’s defense are considered procedurally unlawful. The defense process must be conducted in accordance with the following rules:
● Timing: The employee’s defense must be obtained before the termination. Requests for defense made at the time of termination, after termination, or during the notice period are invalid.
● Invitation: A written invitation must be sent to the employee to provide a defense. The invitation letter must clearly specify the allegations against the employee and indicate a reasonable time, place, and date for submitting the defense. It must also warn that failure to submit a defense within the specified period will be deemed a waiver of this right.
Exceptions: In cases of justified termination based on violations of morality and good faith rules under Article 25/2 of the Labor Law, there is no obligation to obtain the employee’s defense.
Article 25/2 – Acts contrary to morality and good faith and similar situations:
a) Misleading the employer by claiming to possess qualifications or conditions required for a fundamental aspect of the employment contract at the time of its conclusion, despite not actually having them, or by providing false or inaccurate information or statements.
b) The employee making statements or engaging in conduct that harms the honor and dignity of the employer or their family members, or making false accusations or defamatory allegations against the employer that damage their reputation and dignity.
c) The employee committing sexual harassment against another employee of the employer.
d) The employee assaulting the employer, a family member of the employer, or another employee; coming to the workplace under the influence of alcohol or drugs; or using such substances in the workplace.
e) The employee engaging in conduct contrary to honesty and loyalty, such as abusing the employer’s trust, committing theft, or disclosing the employer’s trade secrets.
f) The employee committing a crime within the workplace that is punishable by imprisonment of more than seven days and whose sentence is not suspended.
g) The employee failing to attend work for two consecutive working days, or twice within one month on the day following any holiday, or three working days within one month, without permission from the employer or without a justified reason.
h) The employee persistently failing to perform duties despite being reminded of their obligations.
ı) The employee, through their own intent or negligence, endangering workplace safety or causing damage or loss to machinery, equipment, or other property—whether belonging to the employer or not—that cannot be compensated by the amount of their thirty days’ wages.
Distinction Between Valid Reason and Justified Cause
İşverenler feshin dayanağını doğru belirlemelidir. Geçerli sebep İş Kanununun 18. Maddesinde yer alırken haklı neden 25. Maddede düzenlenmiştir:
● Valid Reason: Arises from the employee’s competence, conduct, or the operational requirements of the enterprise. This condition applies in workplaces employing 30 or more employees and for employees with at least 6 months of seniority. In such terminations, severance pay and notice pay are paid, and written form and the requirement to obtain the employee’s defense apply.
Article 18 – In workplaces employing thirty or more employees, an employer who terminates an indefinite-term employment contract of an employee with at least six months of seniority must rely on a valid reason arising from the employee’s competence or conduct, or from the requirements of the enterprise, workplace, or job. The seniority requirement does not apply to employees working in underground jobs.
In calculating the six-month seniority period, the periods specified in Article 66 of this Law are taken into account.
In particular, the following matters do not constitute valid grounds for termination:
a) Membership in a trade union or participation in trade union activities outside working hours, or during working hours with the employer’s consent.
b) Acting as a workplace trade union representative.
c) Applying to administrative or judicial authorities against the employer, or participating in proceedings initiated in order to pursue rights arising from legislation or contracts or to fulfill obligations.[6]
d) Race, color, sex, marital status, family obligations, pregnancy, childbirth, religion, political opinion, and similar reasons.
e) Absence from work during periods in which female employees are prohibited from working under Article 74.
f) Temporary absence from work during the waiting period specified in subparagraph (b) of paragraph (I) of Article 25 due to illness or accident.
An employee’s six-month seniority is calculated by combining the periods spent working under the same employer in one or different workplaces. If the employer has more than one workplace within the same industry, the number of employees in each workplace is determined based on the total number of employees working across all such workplaces.
The provisions of this article, as well as Articles 19 and 21 and the last paragraph of Article 25, do not apply to the employer’s representatives and their assistants who manage the entire enterprise, as well as to employer representatives who manage the entire workplace and have the authority to hire and dismiss employees.
● Justified Cause: Termination based on the employee’s actions contrary to rules of morality and good faith constitutes a justified cause. In such cases, the employer is not obliged to pay notice compensation and may terminate the contract immediately. However, these allegations must be proven with concrete evidence.
Article 25/2 – Acts contrary to morality and good faith and similar situations:
a) Misleading the employer by claiming that the employee possesses qualifications or conditions required for an essential element of the employment contract at the time of its conclusion, despite not actually having them, or by providing false or inaccurate information or statements.
b) The employee making statements or engaging in conduct that harms the honor and dignity of the employer or the employer’s family members, or making false accusations or defamatory claims against the employer that damage their honor and reputation.
c) The employee committing sexual harassment against another employee of the employer.
d) The employee assaulting the employer, a family member of the employer, or another employee; arriving at the workplace under the influence of alcohol or drugs; or using such substances in the workplace.
e) The employee engaging in conduct contrary to honesty and loyalty, such as abusing the employer’s trust, committing theft, or disclosing the employer’s professional secrets.
f) The employee committing a crime in the workplace that is punishable by imprisonment of more than seven days and for which the sentence is not suspended.
g) The employee failing to attend work without permission or without a justified reason for two consecutive working days, or twice within one month on the working day following any holiday, or for three working days within one month.
h) The employee persistently refusing to perform the duties assigned to them despite being reminded of their obligations.
ı) The employee, through their own intent or negligence, endangering workplace safety or causing damage or loss to machinery, equipment, or other property—whether belonging to the employer or not—at a level that cannot be compensated by the amount of their thirty days’ wages.
Burden of Proof and Evidence
The burden of proving that the termination is based on a valid reason rests with the employer. Indeed, this is explicitly stated in Article 20/2 of the Labor Law: “The burden of proving that the termination is based on a valid reason lies with the employer. If the employee alleges that the termination is based on another reason, the employee is obliged to prove this claim.”
Employers must substantiate the grounds for termination with concrete evidence such as reports, inspection records, witness statements, or, where necessary, expert examinations. For example, situations such as a bank employee engaging in risky transactions or a store manager failing to comply with hygiene rules should be documented through inspection reports and official records.
Posts made on social media containing insults against the employer may also be submitted as concrete evidence. However, it must be carefully assessed whether such posts exceed the limits of legitimate criticism.
Accurate Reporting of the Termination (Exit) Code
When terminating an employment contract, the employer must correctly report the termination (exit) code. For example, there is a contradiction if the employer, on the one hand, claims that the termination is based on a justified cause, but on the other hand pays severance and notice compensation to the employee, or reports the exit code as 04 (termination of an indefinite-term contract by the employer). Supreme Court precedents state that such a situation is considered an indication that the termination is not based on a justified cause.
Termination as a Last Resort
Termination should only be applied when no milder alternative remains to continue the employment relationship. According to Supreme Court precedents, particularly in cases such as health problems, terminations made without offering the employee a suitable alternative position may be considered invalid.
Mutual Termination (Termination by Agreement)
If the employment contract is to be terminated by mutual agreement (termination by settlement), it is important that the offer is stated to have come from the employee and that it is proven that the employee’s will was not under any pressure. Otherwise, it will be considered that the employer has carried out an unjust termination.
Forfeiture Period (Time-Bar Period)
The time period for exercising the right of immediate termination is set out in Article 26 of the Labor Law:
“The right of termination granted to the employee or employer based on acts contrary to morality and good faith specified in Articles 24 and 25 may not be exercised after six working days from the date on which the other party learns of such conduct, and in any case after one year from the date the act was committed. However, if the employee obtains material benefit from the incident, the one-year limitation period shall not apply.
Employees or employers who terminate the employment contract within the period specified in the above paragraph due to such reasons retain their rights to compensation from the other party.”
Compensation Obligations
● Severance Pay: It is mandatory to pay severance pay when the employment contract is terminated for a valid reason or for health reasons (Article 25/I). It is not paid only in cases of termination due to violations of morality and good faith rules (Article 25/II). There are exceptions.
● Notice Compensation: It is paid in cases of valid termination carried out without complying with the notice periods. In cases of immediate termination for just cause, no obligation to pay notice compensation arises.
Court of Cassation Decisions:
“A) Summary of the Claimant’s Request:
The claimant’s attorney stated in summary that the claimant had fully performed his obligation to carry out work duties from the date he started working for the defendant on 11.07.2011 until the date of termination of the employment contract, and that he continued his work in harmony with his colleagues and in good faith. However, the defendant terminated the claimant’s employment contract by a termination notice dated 24.05.2016 without providing any justification. The termination notice stated that the employment contract was terminated “due to working conditions pursuant to the Labor Law,” from which neither the concrete reason for termination nor the legal provision on which it was based could be understood. The claimant was not even aware of the reason for termination. The defendant company did not comply with the requirement set out in Article 19 of the Labor Law, which states that “the employer must provide the termination notice in writing and clearly and precisely state the reason for termination.” This alone clearly demonstrates the unlawfulness and arbitrariness of the termination. The defendant employer should have notified the claimant of the reason for termination and obtained his defense regarding it. Even if a reason were to be stated in the response submitted to the lawsuit, a termination carried out without obtaining the employee’s defense would still be unlawful. The claimant alleged that the defendant employer had warned him, did not obtain his defense, and terminated the contract directly without any justification, and therefore requested a ruling declaring the termination of the employment contract invalid, reinstatement to work, payment of four months’ gross salary and other rights for the period of unemployment, and, in the event that reinstatement is not realized, payment of compensation equivalent to eight months’ gross salary, as well as the imposition of litigation costs and attorney’s fees on the defendant.
B) Summary of the Defendant’s Response:
The defendant’s attorney stated in summary that the claimant started working on 11.07.2011 as a customer relations assistant specialist, and that he terminated his employment contract with his statement dated 24.05.2016, which reads: “…as of 24.05.2016, due to the working conditions and shift schedule not being suitable for me, I hereby terminate my contract unilaterally by receiving all my legal rights…”. It was further stated that the amount of 34,012.68 TL corresponding to severance pay and all employment-related entitlements had been deposited into the claimant’s bank account. Since the claimant unilaterally and of his own free will terminated the employment contract, the conditions under Article 20 of Labor Law No. 4857 were not met. The termination was carried out by the claimant himself, and not by the defendant company. The termination letter dated 24.05.2016 addressed to the Human Resources department of the defendant company clearly shows that it was the claimant who terminated the contract. Therefore, under Article 20 of Law No. 4857, the claimant, whose contract was not terminated by the employer, cannot benefit from job security provisions. Accordingly, the defendant requested that the case be dismissed.
C) Summary of the First Instance Court’s Decision:
The first instance court held that, in the termination notification submitted by the defendant employer, the insured employee’s reason for leaving was indicated as “25,” which corresponds to termination of the employment contract due to conduct contrary to morality and good faith by the employee. The court stated that the reason indicated in the termination notification submitted by the defendant employer is binding on the employer. Although the defendant alleged that the claimant had resigned, the exit code was shown as “25” instead of “3,” and the exit code is binding on the employer. In light of these documents, the court concluded that the employment contract was unlawfully terminated by the employer and therefore accepted the case.
C) Appeal Application:
An appeal was filed against the decision of the court of first instance by the defendant’s attorney.
D) Grounds of Appeal:
In the appeal application, the defendant’s attorney argued that the court ruled in favor of the claim based on an incomplete examination, without hearing witnesses and without taking into account the claimant’s clear intention to resign. It was further stated that, since the claimant terminated the employment contract unilaterally, the conditions under Article 20 of Labor Law No. 4857 were not met. In addition, it was argued that the claimant had stated in the settlement and release agreement dated 24.05.2016 that all of his rights and receivables had been fully paid, and therefore requested the reversal of the first instance court’s decision.
E) Summary of the Regional Court of Appeal Decision:
The Regional Court of Appeal held that, in the termination notice regarding the termination of the claimant’s employment contract by the employer, the reason for termination was not stated clearly and precisely; therefore, the termination was invalid in its current form. In light of the findings made, it was further stated that there was no legal benefit in hearing witness testimony on this matter. Accordingly, the defendant’s appeal was dismissed on the merits.
F) Appeal on Points of Law (Cassation Appeal):
A cassation appeal was filed by the defendant’s attorney against the decision of the Regional Court of Appeal.
G) Reasoning:
There is a dispute between the parties as to whether the employment relationship ended due to the employee’s resignation.
In general, the right to terminate an employment contract is a formative right that produces a dissolving legal effect, granting the authority to terminate the employment contract either immediately or after a specified period through a unilateral declaration of intent directed to the other party. The employee’s right to immediately terminate the employment contract for just cause is regulated under Article 24 of Labor Law No. 4857. The normative regulation of the employee’s termination with notice is set out in Article 17 of the same law. Apart from this, the employee’s resignation is not specifically regulated in the Law.
Termination of the employment contract by the employee without a justified reason and without observing the notice period should be regarded as resignation. Once the intention to resign reaches the other party, the employment relationship comes to an end. Although acceptance of the resignation by the employer is not required, if the employer does not process the resignation letter and the employee continues working at the workplace, a genuine resignation cannot be said to exist. However, if, despite the resignation, the parties’ intentions align to continue working for a certain period, it should be accepted that the employment contract ends through mutual termination (settlement agreement) at the end of the agreed period.
A conditional resignation is, as a rule, not valid. In practice, the most common form is when an employee requests to leave the job on the condition that severance and notice pay are paid; such a request should not be considered as a resignation but rather as an offer to conclude a mutual termination agreement (rescission agreement).
The distortion of the employee’s intention in a resignation letter is also a frequently encountered situation. If the employer requests a written resignation letter from the employee by exerting pressure—such as promising immediate payment of compensation—and the employee complies, a genuine intention to resign cannot be said to exist. In such cases, it should be accepted that the termination was carried out by the employer.
A resignation letter issued as a result of employer pressure cannot be given legal effect. Our Chamber has held that in such cases, the termination is deemed to have been carried out by the employer; however, it must also be assessed whether the employer’s termination was justified (Court of Cassation 9th Civil Chamber, 03.07.2007, E. 2007/14407, K. 2007/21552).
Pursuant to Article 27 of the Code of Civil Procedure No. 6100, which regulates the “Right to a Fair Trial,” the parties to a case, intervening parties, and other persons concerned in the proceedings have the right to a fair trial in relation to their own rights. This right includes being informed about the proceedings, the right to present explanations and evidence, the court’s obligation to consider these submissions, and the requirement that decisions be reasoned in a concrete and clear manner.
According to paragraph 1 of Article 243 of the Law: “Witnesses are summoned by subpoena. However, witnesses who are brought forward by the parties without a subpoena being issued shall also be heard. Nevertheless, in cases where a final deadline has been set for submitting the witness list and the hearing date has been determined, witnesses shall be heard if the party brings them to that hearing even if no list has been submitted.”
In the present dispute, the claimant’s employment contract was terminated by a termination notice dated 24.05.2016 stating that “your employment contract has been terminated as of 24.05.2016 due to working conditions pursuant to the Labor Law.” In the document titled “Settlement and Release Agreement” submitted to the case file, it was also stated that the claimant’s employment contract was terminated due to working conditions, and it was agreed that a total net amount of 34,012.68 TL would be paid to the claimant under the headings of severance pay, vacation pay, earned wages, and other payments. In the handwritten petition dated 24.05.2016, the claimant stated that he terminated the employment contract by exercising his legal rights because working conditions and shift arrangements were not suitable for him.
In his written submissions during the proceedings, the claimant accepted the resignation letter but alleged that the employer instructed him to write a statement indicating that the contract was terminated by him, claiming that this was necessary for the payments to be made. In his statement taken at the hearing, he also asserted that the documents were written and signed upon the request and dictation of the human resources manager, and that he was told he would not receive his compensation otherwise.
After the preliminary examination stage was completed, the court proceeded to the investigation phase and rendered a judgment without collecting the parties’ evidence or conducting any further examination.
Since allegations of defect of intent (irade fesadı) may be proven by any kind of evidence, including witness testimony, in the present dispute the claimant’s right to a fair trial was violated, as the court rendered its decision based solely on the documents in the file and the claimant’s statement, without collecting evidence from both parties and without even hearing witnesses, and without sufficiently investigating the allegation that the resignation letter was affected by defect of intent. Therefore, the judgment was erroneous and required reversal.
H) CONCLUSION:
“The appealed decision is hereby OVERTURNED for the reasons stated above; in view of the grounds for reversal, there is no need at this stage to examine the merits of the appeal objections; the case file is to be sent to the Court of First Instance, and a copy of the decision is to be sent to the Regional Court of Appeal; the advance appeal fee shall be refunded to the relevant party upon request; decided unanimously on 25/06/2018.” (Court of Cassation, 9th Civil Chamber, E. 2017/27227, K. 2018/13691, Dated 25.06.2018)
“A) Summary of the Claimant’s Request:
In summary, the claimant’s attorney stated that the claimant worked at the defendant’s workplace as an assistant cook between 14.05.2012 and 03.08.2016, receiving a wage of 1,600.00 TL, and in addition to this base wage, the claimant regularly and repeatedly received bonuses such as holiday pay, shoe allowance, clothing allowance, leave pay, meal allowance, and a bonus equivalent to one month’s salary every three months. It was further alleged that the claimant worked under harsh conditions at the defendant’s workplace, frequently moving between cold and hot environments due to his duties, and therefore occasionally took leave due to illness. It was also stated that the claimant suffered a work accident while employed by the defendant, and that the defendant’s accusation that the claimant was “obtaining medical reports without being ill” despite the work accident was made in bad faith. The claimant alleged that his employment contract was unjustly terminated and therefore requested reinstatement to his job and payment of compensation arising from the reinstatement lawsuit by the defendant.”
B) Summary of the Defendant’s Response:
The defendant’s attorney stated in summary that the claimant began working as an assistant cook on 14/05/2012 under a part-time employment contract and, as of 01/07/2013, under a full-time employment contract. It was argued that the claimant’s employment contract was lawfully and without severance terminated due to intentional absenteeism by submitting medical reports obtained from various institutions despite not being ill, and therefore requested dismissal of the case.
C) Summary of the First Instance Court’s Decision:
Based on the evidence collected, the court held that “…in the present case, the claimant’s employment contract was terminated due to his frequent use of medical leave, which caused disruptions in work planning. Considering the medical reports obtained by the claimant, his statements, and other evidence, the conduct reached a level that would justify termination for valid reason. The employee’s frequent medical leave disrupted the workflow, and it can no longer be reasonably expected from the employer to continue the employment relationship. Therefore, the termination is based on a valid reason…” and accordingly ruled that the employment contract was terminated for a valid reason and dismissed the case.
Ç) Appeal:
An appeal was filed against the decision of the Court of First Instance by both the defendant’s and the claimant’s attorneys.
D) Grounds of Appeal:
In the appeal petition, the claimant’s attorney argued that the claimant did not frequently take medical leave as alleged, and that the medical reports were obtained due to legitimate excuses. It was further stated that the claimant’s ailments related to scoliosis and physical therapy were supported by medical board reports, that the termination notice was not issued within the required time frame in relation to the date of the last medical report, and that the claimant’s defense had not been obtained beforehand; therefore, the termination was not valid.
In the defendant’s appeal petition, it was argued that the claimant’s employment contract had been terminated for just cause, and a request was made for the first instance court’s decision to be amended to reflect termination for just cause instead of dismissal of the case.
E) Summary of the Regional Court of Appeal Decision:
The Regional Court of Appeal found that, in the termination notice issued by the employer, the following statement was included: “…your employment contract has been terminated as of 28/07/2016 pursuant to Article 25/II of Law No. 4857 due to your intentional absenteeism by submitting medical reports from various institutions despite not being ill.”
When the termination notice is examined in terms of Article 25 of Law No. 4857, it is seen that it relies solely on Article 25/II of the said Law; however, there is no clarification as to which subparagraph of this provision is relied upon. The termination notice states that the claimant obtained medical reports despite not being ill. If this claim were proven, it could be evaluated as conduct contrary to honesty and loyalty under Article 25/II-e of Law No. 4857, and the termination could be considered justified. However, the defendant failed to prove that the medical reports were false.
It is also understood from the termination notice that the employer did not rely on grounds regulated under Article 25/I of Law No. 4857. Therefore, the termination carried out by the employer is not based on a justified cause. Even if it were assumed for a moment that the termination was based on just cause, except for the reasons listed under subparagraph (a) of paragraph (I) of Article 25 of the Labor Law No. 4857, the employer’s right to immediately terminate the employment contract in cases such as illness, accident, childbirth, and pregnancy arises only after the periods specified in Article 17 are exceeded by six weeks, depending on the employee’s length of service.
When assessing whether the termination is based on a valid reason, reasons arising from the employee’s competence or conduct may constitute a valid ground for termination only if they lead to negative effects in the workplace. In cases where the continuation of the employment relationship can no longer reasonably and significantly be expected from the employer, the termination shall be deemed to be based on valid reasons.
In the preamble of Article 18 of Law No. 4857, examples are provided as to when termination due to the employee’s incompetence may be considered a valid reason, one of which is frequent absence due to illness and repeated medical leave. In cases of frequent medical leave, even if the total duration of absence remains within the waiting period, if such repeated absences cause disruption in the workplace, the employment contract may be terminated by the employer with notice or upon expiry of the notice period.
Pursuant to Article 18/2 of Labor Law No. 4857, an employee’s employment contract cannot be terminated for reasons related to conduct or performance without first obtaining the employee’s defense against the allegations made.
In the present dispute, it is understood that the claimant’s medical leave days were intermittent, that the claimant’s notice period did not exceed six weeks according to the relevant duration, and that the legal conditions under Article 25/I of Law No. 4857 were not met. Therefore, the termination of the claimant’s employment contract is not based on just cause. The defendant’s attorney’s appeal argument in this respect is not well-founded. However, although the first instance court accepted that the employment contract was terminated for a valid reason due to the claimant’s frequent medical leave, it was not proven by the defendant that the claimant’s defense had been obtained prior to termination, despite the termination being based on alleged poor performance (medical leave). As also stated in the decision of the 9th Civil Chamber of the Court of Cassation dated 27/02/2017 (E. 2016/5358, K. 2017/2536), it was found erroneous for the court to dismiss the case based solely on this reason instead of accepting it.
Therefore, with the reasoning that “the claimant’s appeal should be accepted and the decision of the first instance court should be set aside pursuant to Article 353/1-b/2 of the Code of Civil Procedure (HMK), and the case should be accepted,” it was decided to dismiss the defendant’s appeal on the merits pursuant to Article 353/1-b/1 of the HMK No. 6100, to accept the claimant’s appeal, to set aside the judgment of the … 10th Labor Court dated 30/12/2016 (E. 2016/487, K. 2016/599) pursuant to Article 353/1-b/2 of the HMK No. 6100, to accept the lawsuit, to declare the termination carried out by the employer invalid, and to order the claimant’s reinstatement.
F) Appeal:
The defendant’s attorney filed an appeal against the decision of the Regional Court of Appeal.
G) Reasoning:
In the present dispute, the claimant’s employment contract was terminated by the employer pursuant to Article 25/II of Labor Law No. 4857 on the grounds that the claimant allegedly failed to comply with the workplace procedure, according to which employees are required to first consult the workplace physician in case of illness, but instead bypassed this procedure and repeatedly obtained medical leave reports from other institutions despite not being ill, and thereby engaged in absenteeism without a valid excuse.
However, based on the information and documents in the case file, the employer failed to prove its allegation that the claimant obtained medical reports without being ill and thus engaged in misconduct.
Moreover, no written document regarding the alleged workplace procedure—requiring employees to first consult the workplace physician in case of illness and to consult another physician only if deemed necessary by the workplace physician—was submitted to the file. Therefore, the defendant employer failed to establish that the termination was justified.
On the other hand, it is established from the numerous medical leave reports in the case file that the claimant frequently took sick leave and was unable to attend work, and that this situation caused disruptions in the workplace and adversely affected workflow. The defendant relied on this as a factual basis. The judge is obliged to examine ex officio the scope of the applicable legal provisions and the legal qualification of the established facts. It is evident that the claimant’s conduct, which does not constitute just cause and which is put forward by the employer as a factual circumstance, would disrupt the workflow, and it cannot reasonably be expected from the employer to tolerate such a situation.
Although it is accepted that the employer was not entitled to terminate the contract for just cause on the stated grounds, but that the termination was based on a valid reason, the Regional Court of Appeal’s relevant chamber erred in accepting the claim instead of dismissing the reinstatement action, and in failing to consider that, since the employer relied on just cause, the failure to obtain the employee’s defense prior to termination would not affect the validity of the termination.
Therefore, it is necessary to set aside and overturn the appealed decision of the Regional Court of Appeal, and for our Chamber to decide as follows pursuant to Article 20/3 of Labor Law No. 4857.
H) JUDGMENT:
For the reasons explained above;
1-) The appealed decision of the Regional Court of Appeal is hereby OVERTURNED and SET ASIDE,
2-) Since the termination of the claimant’s employment contract is based on a valid reason, the reinstatement action is DISMISSED,
3-) As the court fee has been collected in advance, there is no need for it to be collected again,
4-) The litigation costs incurred by the claimant shall be borne by the claimant; the litigation costs of 139.00 TL incurred by the defendant shall be collected from the claimant and paid to the defendant,
5-) The attorney’s fee of 2,180.00 TL, determined according to the tariff in force on the date of judgment, shall be collected from the claimant and paid to the defendant; the case file shall be sent to the Court of First Instance and a copy of the decision shall be sent to the Regional Court of Appeal,
6-) The advance appeal fee shall be refunded to the defendant upon request. The decision was rendered unanimously and is final on 25.10.2018. (Court of Cassation, 9th Civil Chamber, E. 2018/1248, K. 2018/19371, Dated 25.10.2018)
Lawyer Gökhan AKGÜL & Lawyer. Züleyha APAYDIN
