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Editorial

Rightful Termination of Employment Contracts by Employees in Turkish Labor Law

October 2017 - Employment. Legal Developments by ADMD Law Office .

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The employees are entitled to terminate their employment contracts, whether the contract is for a definite or indefinite period, before its expiry or without having to observe specified notice periods in case of serious and important reasons determined in the Article 24 of the Labor Law No. 4857 (the “Labor Law”).

The fulfillment of the conditions specified in the relevant Article is not sufficient for the employee to terminate the contract and the employee should also notify the employer regarding such termination.

Although there is no statutory provision for the form of termination notification, the precedent of Appellate Court decisions on the subject indicate that the notice of termination should be made in writing and served through the notary public and the employee should indicate the reasons for his/her termination clearly and in a reasonable manner.

Should the employment contracts of the employees are terminated by employees under the following circumstances, the employers are required to make severance compensation payments to the employees, provided that the period of the employment with such employer continued at least for one (1) year. 

The reasons for just cause termination of the employment contracts by employees are classified in three (3) main headings and explained below in further detail:

I. Health Reasons:

It should be noted that the validity of termination due to the health reasons mentioned hereunder are dependent on the medical determination of such status.

As per the precedent of the Appellate Court, employees shall obtain a health committee report from one of the Fully Equipped General/State Hospitals, Institutes of Forensic Sciences or University Hospitals in order to determine and prove whether they have any illnesses that may prevent them from work by taking into consideration of the workplace features, age of employee, working conditions, employee’s job and employment period as a whole.

Termination based on health reasons which are not medically determined would not be deemed as rightful termination in accordance with such sample decisions of the Appellate Court.

a) If the performance of the work stipulated in the employment contract endangers the employee’s health or life for a reason which was impossible to foresee at the time the contract was concluded;

The danger which is mentioned above should be related to the nature of the business/work and should not be remedied, otherwise, such termination will not be deemed as rightful termination.

To give an example from the precedent of Appellate Courts for implementation of the Article 24/1-(a) of the Labor Law: If the employer changes or offers to change the position/job/task assigned to or the workplace of the employee so that he/she is no longer affected by the source of problem following the determination of such health problem, the employee's opportunity to terminate the contract on a rightful basis due to health reasons may become unjustified.

Subject to the Appellate Court decisions, the danger that is imposed by the work may not need to be fatal and it is sufficient that there is some danger to the health and/or life of the employee.

b) If the employer or another employee who is constantly near the employee and with whom he/she is in direct contact with is suffering from an infectious disease or a disease that is may affect the work that the employee is performing.

The precedent of the Appellate Court notes that in case the disease is noninfectious or infection risk is controlled with medical interventions such as vaccination, the relevant termination with such cause will not be deemed rightful.

II. Events Contrary to Ethical Rules and To Goodwill and Others:

a) If the employer has deceived the employee  when executing the employment contract by misrepresentation on essential parts of the employment contract or by giving information or making statements which do not represent the truth

Within the scope of the aforementioned provision, it is crucial to state that the termination of the employment contract by an employee would be deemed rightful termination only if an employment contract signed by an employee since he/she has been deceived by the employer.

In other words, misrepresentation should be on the essential parts of the employment contract and such misrepresentation should have an impact on the decision for concluding such contract on employees’ behalf.

Furthermore, the incorrect information referred to in this provision shall be regarding the working conditions, the location of the workplace and/or nature of the work etc. in order to drive/motivate the employee to conclude a contract by the employer.

For example; in cases where there is a discrepancy between the employers’ initial commitment for salaries or benefits and the ones that are actually paid or provided, the employee would have a right to terminate such contract on a rightful basis.

b) If the employer; makes statements or acts in any way, which is damaging to the honor and integrity of the employee or of any member of his/her family thereof; or sexually harasses the employee

The statements mentioned in the first part of the aforementioned provision damaging to the honor and integrity of the employee should be evaluated separately for each case based on the social situations and sense of decency of both sides. It is sought that the acts and/or behaviors of the employer should damage the honor and integrity of the employee.  Personal insults or use of profanity are examples of such actions.

It should be noted that criticism on a particular area of expertise within the scope of constructive and objective measures and/or criticism regarding performance or nonconformity acts of the employee is not deemed as an act and/or behaviors that damage the honor and integrity of the employee. According to the Appellate Court decisions; during discussions for a salary raise, statements of the employer to his/her employees such as "why should I give him/her more money, he/she is not performing well’  would be deemed an employer’s performance criticism and does not grant a right to terminate employment contract with just cause by employee.

Furthermore, another employee’s statements or acts, which damage the honor and integrity of an employee or of any member of his/her family, shall not grant a right to terminate the employment contract with just cause by such employee. However, the employer shall take precautionary measures to stop such harassment following notification by the employee to fulfill the supervision obligation of the employer.

c) If the employer; untruthfully alleges the employee or of any member of his/her family thereof for committing a crime; or motivates, provokes or tags along the employee or of any member of his/her family thereof for an illegal act; or commits a crime that is punishable by prison sentence against the employee or of any member of his/her family thereof; or assaults or threatens the employee or of any member of his/her family thereof.

According to the Appellate Court decisions, the assault occurs in the form of a verbal threat, insult or acts of battery. Discussions or disagreements that do not reach the level of assault are not deemed as a rightful ground for termination. However, the criminal elements of felony assault or threat are not sought for the justification of such ground for termination.

The concept of the family mentioned in the aforementioned provision shall be interpreted widely. There is importance whether the acts of the employer against the employee or a member of his family occurs at the workplace or not.

The employer’s acts of encouraging, provoking or pushing to commit an illegal action may be exampled as asking to give a false testimony or forging documents.

It should also be noted that while the offense of the employer against the employee or a member of his family should be punishable by a prison sentence, the employer need not be imprisoned because of such offense.  An example of this type of act is if the employer injures an employee or one of his family members.

There is no clear precedent for the definition of the acts damaging honor and dignity, however, an example may be employer’s accusation towards an employee for theft.

d) If t employee is sexually harassed by another employee or by a third party at the workplace and no precautionary measures are taken by the employer although notified by the employee.

Two conditions shall be met for this provision to be used for rightful termination by the employee, first, the act of harassment should take place at the workplace and second, the employer shall not take precautionary measures to stop such harassment following notification by the employee.

Even if an employer is not the source of the harassment acts, the employer will become liable for such acts within the scope of the obligations for protection of employees as part of the framework of the employment contract.

To give examples of precautions according to aforementioned provision, the employer may warn the harassing employee or third party may replace the victim employees or the harassing employees’ workplaces or may terminate the employment contract of the harassing employee etc.

e) If the employer fails to calculate the accrual or payment of the employee’s salary in accordance with the law or the terms of employment contract;

The salary referred in this provision shall not be considered as a monetary remuneration rights of the employee only, it also contains other contractual and legal rights of the employee which may or may not be measured in monetary terms.

If payment is not made on the specified day as per to employment contract, it is considered to be justified reason for an employee within the scope of this paragraph. However, in the absence of such payment, employer's purpose of avoiding to make payment is sought; explainable and reasonable causes such as being unaware of such payment and delay in the wire transfer would not be deemed as a fault of the employer.

According to the Appellate Court’s precedent, employees including but limited to the ones who are transferred from premium work to non-premium work without his/her approval; who has not received any bonuses; whose salaries are lower than their colleagues; who are uninsured or whose insurance premiums are not paid completely may have a rightful termination right as per to such provision.

f) If the salary is to be paid in return of pieces of work or task completion basis and if the employer fails to provide the employee sufficient pieces to finish or tasks to complete and/or fails to compensate the difference or working conditions determined are not complied with.

The employer shall compensate the difference in pay to an employee in case of such shortcomings for delegation and otherwise, the employee has a right to termination on a rightful basis within the scope of this provision.

If the employer changes or hardens the predetermined working conditions with regards to the nature of business without obtaining approval of the employee, the employee should also have the rightful termination rights awarded within the scope of such provision.

III. Force majeure

In cases of force majeure in the workplace where the employee is employed that involves the stop of work for over a week.

If the stoppage of work lasts for a week or more in case of force majeure event, the employer has to pay at least half of the fees of the employees per each day.

After one week, the employer has no obligation to pay a fee to any employee but the employee’s termination right arises.

The force majeure is an unforeseen, unavoidable external event. Technical failures, natural disasters, and legal proceedings by the administration which linked with workplace are seen as force majeure events. However, this provision shall not be applicable in the events of loss of work caused by employer’s own failure or other situations, tagging employers’ liability such as failure of maintenance or repair of machines, lesser work available or stoppage of the work for seasonal reasons, stoppage for overstock etc.

Period for Exercising the Rightful Immediate Termination by Employee

According to the Article 26 of the Labor Law, right of termination of the employment contract by employee relying on immoral behavior and good will stated in Article 24, may not be used after six (6) days from the day on which employee learns such behavior of the employer, an in any case after one (1) year as of the occurrence of acts or events.  However, the one (1) year period shall not apply in case the employee enjoys any material advantage.

If the employee does not terminate his employment contract within the stipulated period of time, any such termination following the limited time period would be classified as unjustified termination. The time specified here is not time statute of limitation but is the period of the right to be consumed. Therefore, the Courts will take such limit it into consideration even without any motion by the employer.

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