Article 25 sets out four main headings when determining the conditions under which the employer’s right of employment contract termination in Turkey for just cause arises. Under the first heading, the effect of the health condition, under the second heading, non-compliance with the rules of morality and good faith, under the third heading, the existence of compelling reasons and under the last heading, the effect of the detention or arrest of the employee.
The following issues are regulated under the first heading “Health Reasons”
i. In the event that the employee suffers from a disease or disability arising from his/her own intention or disorderly living or fondness for alcohol, the absence arising from this reason lasts more than three consecutive working days or more than five working days in a month.
ii. In the event that it is determined by the Health Board that the disease suffered by the employee is of an incurable nature and that it is inconvenient for the employee to work at the workplace, the right of employment contract termination in Turkey without notice for the employer in cases such as illness, accident, birth and pregnancy, except for the reasons listed in subparagraph (a), arises after the specified cases exceed the notification periods in Article 17 by six weeks according to the working time of the employee at the workplace. In cases of birth and pregnancy, this period starts at the end of the period in Article 74. However, the wage does not accrue for the periods when the employee cannot go to work due to the suspension of the employment contract. According to this provision, for example, an employee who has worked at the workplace for 1 year should wait for a total of 10 weeks before the termination of his/her employment contract in Turkey according to this provision, with the expiry of 6 weeks following the 4 weeks of notice period. If the worker in the same situation is pregnant, then the period to be waited for is 8 weeks, which is the maternity leave after the birth, 4 weeks, which is the notice period afterwards, and finally a total of 18 weeks, which will be found by adding the 6 weeks in the provision of the article. Again, if this worker has a multiple pregnancy, 2 more weeks should be added to this period.
In the second case, which is titled “Circumstances Incompatible with the Rules of Ethics and Good Faith and the Like”, the employer’s right of employment contract termination in Turkey arises upon the realization of the following circumstances.
i. The employee misleading the employer by claiming that he/she has the qualifications or conditions required for one of the essential points of this contract when he/she does not have them at the time of the conclusion of the employment contract, or by giving information or words that are not in accordance with the truth.
(In this case, it will be useful in fulfilling the burden of proof to define the work to be performed, especially if it requires expertise, in the employment contract, to request certificates, certificates of expertise, certificates of employment and similar documents for the work to be performed, to stipulate a written trial period, and to prepare a report or form evaluating the worker at the end of the trial period. It should not be forgotten that in case of a dispute, the worker’s professional background, his/her expertise in the work and his/her attention at that moment will be taken into consideration. If occupational health and safety at the workplace is endangered by the performance of the work or if an accident has occurred, the employer’s responsibilities in terms of occupational health and safety will also be taken into consideration).
ii. The employee utters words or behaves in a manner that may touch the honour and reputation of the employer or one of their family members, or makes unfounded reports and allegations about the employer that are offensive to honour and dignity. (In this case, it must be proved by appropriate means that the employee has acted in such a manner. If the words are learned through third parties, the employee’s written defence must be obtained).
iii. The employee sexually harassing another employee of the employer. (Since the subject of harassment is a particularly delicate subject, in the accusation of harassment, the place where the workplace is established and the general morality of the employees should be taken into consideration, the existence of an accusation should be sought or the existence of a threat or fraud that prevents the accusation should be investigated, if the accusation is to be made, it should be requested in writing, and the written defence of the accused employee should be applied.)
iv. If the employee teases the employer or one of his/her family members or another employee of the employer, or if the employee comes to the workplace intoxicated or intoxicated with drugs or uses these substances in the workplace, except for the characteristics of the workplace and the work performed (in case of teasing, the characteristics specified in the harassment section should be acted upon; if there is no obvious observation in case of intoxication or intoxication, blood and similar tests should be carried out and defence should be taken again).
v. The employee’s behaviors that do not comply with integrity and loyalty, such as abusing the employer’s trust, theft, revealing the employer’s professional secrets. (In terminations based on this reason, the employee’s behavior must be proved by appropriate means. Since acting contrary to honesty and loyalty is a very broad expression, the alleged situation should be put forward in detail and the customs and traditions of the place or the employee or the employer should be evaluated and a defence should be taken).
vi. The employee commits an offense at the workplace which is punishable by imprisonment for more than seven days and the penalty is not postponed. (In this case, a crime must be committed in order to terminate the employment contract of the employee. Because the fact that the worker is taken under observation, arrested or even tried does not indicate that he/she has committed the offense. However, if he/she is convicted, he/she will be in the guilty position. Again, it is important that the alleged offense is committed within the boundaries of the workplace, but its nature is not important.
If the offense is committed outside the workplace, then it will be necessary to act according to the fourth subparagraph. Finally, it is important that the penalty of the offense is of a nature that requires imprisonment for more than 7 days and is not postponed. If the sentence is less than 7 days imprisonment or if the sentence is postponed, the provision of the article will not be applicable).
vii. The employee is absent from work for two consecutive working days or twice in a month on the working day after any holiday or three working days in a month without permission from the employer or without a justifiable reason. (In the absenteeism stated in the article “twice in a month” or “three working days in a month”, the beginning of the month will be based on the date of the first absence. In terms of the burden of proof, it will be useful to receive the leave requests from the employee in writing, to grant the leave in writing, to show the number of days in these documents, to ask for the reason for the absence by sending a letter to the registered address of the employee by sending a letter to the registered address of the employee by sending a statement when there is absenteeism and when the employee returns to work, and if not, by sending a letter to the registered address of the employee by appropriate means (registered mail with return receipt requested or notary notification and similar), and if he/she puts forward an appropriate excuse, to ask him/her to document this situation, and to prepare a separate report for each day of absence and the signature of the witnesses on it. In this regard, it is useful to distinguish between the concepts of absenteeism and leaving the workplace, which are confused in practice. Leaving the workplace means that the employee terminates the employment contract with an open and confidential declaration of will with or without a justified reason and leaves the workplace and does not return. In this case, since the burden of proof belongs to the employee, no action is required to be taken by the employer. It is only necessary and sufficient to document in writing that the workplace has been abandoned. Absenteeism, on the other hand, means that the employee does not come to the workplace for a period of time with or without a reason, but then comes back to work or wants to do so. In this case, the right of employment contract termination in Turkey belongs to the employer and it will be appropriate to fulfil the burden of proof as explained above).
viii. The employee insists on not performing the duties that he/she is obliged to perform even though he/she is reminded (In this case, again as stated in the first case, a detailed job description should be made, the professional background of the employee should be investigated in the job application, a written trial period should be foreseen, the employee should be evaluated at the end of the trial period, if a warning is to be given, it must be made in writing, it must be proved by appropriate means that the work is not done or not done properly, and finally the defense of the employee should be taken in writing).
ix. The worker endangers the safety of the work due to his/her own will or negligence, damages or loses the machines, installations or other goods and materials which are the property of the workplace or which are not the property of the workplace but which are in his/her possession, to the extent that he/she cannot pay the amount of his/her thirty days’ wage. (In this case, a detailed definition should be made, the professional background of the worker should be investigated in the job application, a written trial period should be foreseen, and the worker should be evaluated at the end of the trial period.
In particular, if there is a claim that occupational safety is jeopardised, the health and safety conditions in the workplace will also be examined, and the obligations in this respect must have been fulfilled. In case of damage, the element of intention or negligence of the employee should be sought, the above explanations should again be paid attention to, and in determining the damage, expert reports or the amounts of the relevant invoices and similar documents should be relied upon in addition to unilateral predictions. In these cases, written defence should be applied).
Under the third heading, the effect of compelling reasons on the employer’s right of employment contract termination in Turkey is regulated. Accordingly, the employer’s right of employment contract termination in Turkey arises in the event of a compelling reason that prevents the employee from working at the workplace for more than one week. Based on the definition, the reason that arises must be a reason that prevents the employee from working at the workplace, therefore it must be related to the employee. If the compelling reason is related to the workplace, then the similar regulation in Article 24 may come into effect.
In the last case, the effect of absenteeism in case of detention or arrest of the employee is analysed. Accordingly, in this case, the absence must exceed the notification period in Article 17. In this case, the detention or arrest is related to the workplace, and since no criminal element is sought, it is sufficient that the detention or arrest exceeds the prescribed period. Accordingly, the right of employment contract termination in Turkey can be exercised when the absenteeism of the detained or arrested employee exceeds the notification period that he/she deserves according to his/her working period. For example, the period to be waited for the termination of the employment contract in Turkey of an employee with a seniority of more than 3 years in the workplace arises after 56 days starting from the day of detention or arrest.
