Contact: Ceyda Büyükoral; Erdem & Erdem Law Office (Turkey)
“Job Security” is regulated under Article 18 et seq. of the Labor Code No. 4857 (“Labor Code”). The right of an employer to terminate an employment contract by giving prior notice to an employee is restricted by law for the purpose of protecting the job security of an employee.
Termination by Giving a Prior Notice
An employment contract with an indefinite term may be terminated if prior notice is given in accordance with Article 17 of the Labor Code. The Labor Code provides for different notice periods depending on an employee’s seniority. Pursuant to Article 17:
“Following the receipt of written notice by either party, the contract of an employee will terminate as follows:
- at the end of the second week, if the employment lasted less than six months;
- at the end of the fourth week, if the employment lasted more than six months but less than 1½ years;
- at the end of the sixth week, if the employment has lasted more than 1½ years but less than three years; or
- at the end of the eighth week, if the employment lasted three years or more.
The above periods are minimums and may be increased by contracts.”
Termination for Valid Cause
The number of employees defines the limits of an employer’s latitude to terminate an employment contract. In workplaces where the number of employees is less than thirty, employers are given wide latitude to terminate employment contracts. However, in workplaces where the number of employees is thirty or more, any dismissal must be justified with a valid cause.
Article 18 of the Labor Code stipulates that in a workplace where there are thirty or more employees, any dismissal of an employee who has been employed for at least six months under an employment contract for an indefinite term shall be subject to a valid cause which may be the requirements of the job or the workplace, or the capacities or behavior of the employee.
The same article enumerates some particular cases that will not constitute valid causes for termination. Pursuant to Article 18, the following cases cannot be deemed as valid causes:
a) membership in a trade union or participation in union activities outside of work hours or within work hours with the consent of the employer;
b) being the trade union representative for the business;
c) the filing of a complaint or participation in proceedings against an employer involving alleged violations of laws or regulations or recourse to competent administrative or judicial authorities;
d) race, color, sex, marital status, family obligations, pregnancy, birth, religion, political opinion and similar reasons;
e) absence from work during maternity leave when female employees must not be engaged in work, as foreseen in Article 74;
f) temporary absence from work during the waiting period due to illness or accident as described in Article 25 of the Labor Code.
As it is explained herein above, in workplaces where there are thirty or more employees, any dismissal must be subject to a valid cause. The job security provisions are applicable for those who have been employed for at least six months under an employment contract with an indefinite term. However, the job security provisions are not applicable to the employer’s representative authorized to manage the entire enterprise as well as the employer’s representative managing the entire establishment but who is also authorized to recruit and to terminate employees.
The number of employees must be calculated by taking into consideration all employees employed in all workplaces belonging to the same employer in the same sector. Similarly, the minimum six-month seniority of an employee must be calculated by taking into consideration his employment periods in all workplaces of the same employer as a whole.
Procedure for Termination of Contract
Article 19 of the Labor Code regulates the procedure for termination of employee contracts falling within the scope of the job security provisions. Pursuant to Article 19, the employer must issue a written notification where the cause of termination is clearly and precisely specified. If and when the cause is the capacity or behavior of the employee, then the employer shall grant the employee the opportunity to defend himself against the allegations. The right of the employer to terminate a contract for just cause in accordance with Article 25/II without giving prior notice is however reserved.
Procedure of Objection against Termination
Pursuant to Article 20 of the Labor Code, the employee who alleges that no reason was specified for the termination, or who considers that the reasons specified were not valid to justify the termination, shall be entitled to file a lawsuit against that termination in the labor court within one month following receipt of the notice of termination. If the parties so agree, the dispute may also be referred to private arbitration within the same period.
The burden of proving that the termination was based on a valid reason shall rest on the employer. However, the burden of proof shall be on the employee if he claims that the termination was based on a reason different from the one presented by the employer.
Consequences of Termination without a Valid Reason
If the court or the arbitrator concludes that the termination is invalid, the employer must re-engage the employee in work within one month. If, upon application by the employee, the employer does not re-engage him in work, the employer shall pay to the employee compensation not less than the equivalent of four months’ wages and not more than the equivalent of eight months’ wages.
In its decision ruling the termination invalid, the court or arbitrator shall also designate the amount of compensation to be paid to the employee in the event he is not re-engaged in work.
The employee shall be paid up to four months’ total of his wages and other entitlements for the time he is not re-engaged in work while a final decision is being reached.
If advance notice pay or severance pay has already been paid to the reinstated employee, it shall be deducted from the compensation awarded by the court or the arbitrator. If term of notice has not been given, nor advance notice pay paid, the wages corresponding to the relevant term of notice shall also be paid to the employee not re-engaged in work.
For re-engagement in work, the employee must apply to the employer within ten working days following the date on which the finalized decision was communicated to him. If the employee does not apply within the said period, termination shall be deemed valid, in which case the employer shall be held liable only for the legal consequences of that termination.
Conclusion
The job security provisions are regulated under Article 18 et seq. of the Labor Code. In a workplace where there are thirty or more employees, dismissal of an employee who has been employed for at least six months under an employment contract for an indefinite term shall be in accordance with Article 17, and must be justified with a valid cause. Examples of a valid cause may be the inability to fulfill the job requirements or to perform adequately under workplace conditions, or the employee’s behavior. Otherwise, the employee has the right to initiate a lawsuit for wrongful dismissal.
