Lara Candoğan

Attorney

24.07.2023

Types Of Termination İn Turkish Law

In Turkish Labour Law, termination means the termination of the employment relationship between the employee and the employer. The employee may resign when he/she wants to leave the job. The employer, on the other hand, may dismiss the employee under certain conditions and in accordance with legal procedures. The employee or the employer must comply with the notice periods for termination. The Labour Law regulates the termination process and the cases of termination and determines the rights and obligations of the parties. 

The employment contract between the employee and the employer may be concluded for a definite or indefinite term. In this respect, it is necessary to consider the termination of the employment contract separately in terms of the fixed and indefinite term of the contract. 
 
A.    TERMINATION OF FIXED-TERM EMPLOYMENT CONTRACT
Fixed-term employment contracts regulate the employment relationship between the employee and the employer for a predetermined period of time. This period is usually determined by a specific date or the realisation of a specific event. For example, fixed-term employment contracts can be made with expressions such as "6-month employment contract" or "employment contract that will end when the project is completed". Fixed-term employment contracts automatically expire at the end of the contract period. For this reason, there is no need for the employee or the employer to give a notice of termination.
However, in some cases, fixed-term employment contracts may be terminated through notice of termination. Accordingly, the cases of termination of a fixed-term employment contract through notice of termination are as follows;
1.      According to Article 430/2 of the Turkish Code of Obligations, if a fixed-term contract is implicitly continued after its expiry, it becomes an indefinite-term contract. In this way, a fixed-term employment contract that turns into an indefinite-term contract may be terminated by notice of termination.
2.      The parties may have agreed that they may terminate the fixed-term employment contract through notice of termination. In this case, the fixed-term employment contract may be terminated by notice of termination.
3.      According to Article 430/2 of the Turkish Code of Obligations, if the fixed-term employment contract lasts longer than ten years, the parties have the right to terminate the contract. Therefore, both the employee and the employer may terminate an employment contract for more than ten years by complying with the six-month termination notice period.
4.      If a trial period is specified in a fixed-term employment contract, the parties may terminate the contract within this period.
5.      The parties may terminate the employment contract immediately in the presence of justified reasons.
 
B.    BELİRSİZ SÜRELİ İŞ SÖZLEŞMESİNİN FESHİ 
Indefinite-term employment contracts regulate the employment relationship between the employee and the employer, the duration of which is not specified. In such contracts, the employee and the employer have the mutual right to terminate the contract. The termination of an indefinite-term employment contract may be performed by the employee or the employer, but the parties must comply with the termination periods stipulated in Article 432/2 of the TCO. The person who wishes to terminate an indefinite-term employment contract through a notice of termination must notify the other party that he/she is terminating the contract.
 
As a rule, the notice of termination is in question for indefinite-term employment contracts. In Turkish Labour Law, the types of termination can be listed as justified termination, unjustified termination and valid termination.
 
1)     JUSTIFIED TERMINATION
The justified termination is the right of the employee or the employer to terminate the employment contract for just cause. In this respect, justified termination refers to the special circumstances specified in Articles 24 and 25 of the Labour Law. The reasons specified in these articles cover the situations where it is not possible to continue the employment relationship.  Justified termination can be made by the employee or the employer.  Some common reasons for justified termination by the employee are as follows;
·        If the employer fails to pay the employee's wages regularly, the employee may terminate the employment contract for just cause.
·        In cases where the necessary precautions are not taken for the health and safety of the employee, the employee may rightfully terminate the employment contract if he/she faces serious risks regarding occupational health and safety.
·        In cases where the employer mistreats, humiliates, assaults, attacks or engages in unfair behaviour such as offending the dignity of the employee, the employee may rightfully terminate the employment contract.
·        If the employer fails to fulfil the important conditions specified in the employment contract, the employee may make a justified termination. For example, not paying the specified wage or changing the working hours may be a breach of contract.
 
In the case of justified termination by the employer, some common reasons are as follows;
 
·        Disciplinary violations by the employee, such as theft, violence, serious failure to fulfil his/her duties or disloyal behaviour towards the employer, may require the employer to make a justified termination.
·        The employee's continuous late arrival to work or absenteeism may adversely affect the employer's business continuity and may be a justified reason for termination.
·        If the employee intentionally or knowingly causes serious damage to the employer in the workplace, the employer may terminate the employment contract for just cause.
·        The employee's disclosure of the employer's trade secrets or professional secrets such as customer information may undermine the employer's trust and may be grounds for justified termination.
·        Failure of the employee to consistently perform as expected by the employer or inability of the employee to fulfil his/her duties may give rise to the employer's right to justified termination.
·        Failure of the employee to adapt to the requirements of the workplace may prevent the employer's business continuity and may lead the employer to justified termination.
 
When one of the justified grounds for termination specified in the Labour Law No. 4857 occurs, the employer or the employee may terminate the employment contract immediately, without the need for warning or notice. Therefore, in the event of termination for just cause, we can say that the parties may give notice of termination immediately and without complying with the notice period. 
 
 
 
2)     UNJUST TERMINATION
 
Unjust termination is the arbitrary termination of an employment contract by the employee or the employer without just cause or without exercising a legally recognised right of termination. Examples of unjust termination by the employee are given below:
·        If the worker leaves the job without a valid reason before the end of the contract period, this is considered unfair termination.
·        In the event of a dispute with the employer, if the employee leaves the job to resolve the dispute and leaves the job without a valid reason, this is considered unfair termination.
·        Examples of unjust termination by the employer may be as follows:
·        If the employer arbitrarily dismisses the employee without a valid reason or without violating the rights of the employee, it is considered unfair termination.
·        The employer's dismissal of the employee based on discriminatory grounds such as race, gender, religion, ethnic origin is unfair termination.
·        The employer's dismissal against the legitimate trade union activities of the employee is considered unjust termination.
 
In case of unjust termination, the employee or the employer may face different legal sanctions. For example, in case of unjust termination, the employee may claim compensation against the employer or file a lawsuit for reinstatement.
 
3)     VALID TERMINATION

             Valid termination is the termination of the employment contract by the employee or the employer for a valid reason. The employer may terminate the employee for certain reasons, but these reasons must comply with legal regulations. Valid termination allows the employer to exercise the right to dismiss the employee under legal protection. In the event of a valid termination by the employer, the employee must be paid severance pay in accordance with Article 17 of the Labour Law. At the same time, the employee may terminate the employment contract by giving a certain period of notice in accordance with Article 20 of the Labour Law. 
 
The reasons for the employee to make a valid termination may be as follows; 
- If the employer declares bankruptcy or concordat, the employee may terminate the employment contract during the bankruptcy or concordat process.
 
The reason for the employer to make a valid termination may be as follows; 
- Certain reasons in the workplace may justify the employer to terminate the employee. For example, situations such as closure of the workplace or reduction of work due to economic or technological reasons may be valid reasons for termination.
 
Grounds for valid termination must comply with the provisions of the Turkish Labour Law and the relevant legal regulations. In case of a valid termination, a prior warning or warning process must be carried out in order for the reason for termination to be valid.
 
CONCLUSION
The employee and the employer have the right to terminate the employment contract. Both the Turkish Code of Obligations and the Labour Law give the right to terminate the contract to the employee and the employer. However, these terminations are subject to certain conditions. In particular, termination plays an important role in terms of whether the contract is fixed-term or indefinite-term. As a rule, indefinite-term employment contracts are terminated. However, in some cases, fixed-term employment contracts may also be terminated by termination. 
According to the Labour Law in Turkey, either the employee or the employer may terminate the employment contract for just cause under certain circumstances by notifying the other party in writing. The notice periods that must be observed in order to terminate an employment contract for just cause are determined depending on the period of employment of the employee or employer and the characteristics of the employment contract.

The termination of employment, which is one of the most important issues in labor law in labor disputes, is examined in this article. It is extremely important for the employee and the employer to know the reasons for termination and the consequences of termination in order to avoid loss of rights after the employment contract is terminated.