As per the  provisions of the Labor Code (the “Code”) regulating the probationary period:

1. A probationary period may be envisaged in employment agreements;
2. The relevant period shall not exceed two (2) months; and
3. As an exception, probationary period may be determined up to four (4) months for collective labor agreements (in Turkish “toplu iş sözleşmesi”).

The aim of the probationary period is to provide both parties with sufficient time to assess whether they are well suited for each other.

If an employee is dismissed during the probationary period, the applicable procedure would be as follows:

• During the probation, an employment agreement may be terminated without notice;
• The employee will not be entitled to notice pay or seniority indemnity; and
• Employee’s wage and related rights must be paid for the days worked.

In this respect, two or four months could be considered quite short  for the employer to have the opportunity to be well acquainted with the employee, employee’s personal appropriateness, competency, as well as for the employee to understand whether the job description or work environment meets his/her expectations.

Especially in companies without a human resources department or more usually in international companies, a period of two months may result in challenges for the correct evaluation of the new recruit.

Therefore in cases where the probation period has expired however the employer needs to terminate the employee’s employment contract, there are still some protections for the employer in terms of the obligations/ risks arisen from termination, specifically if the termination is made within 6 months as of the beginning of the employment:  

1.  The employer shall not pay seniority indemnity:

As per Article 120 of the Labor Code Numbered 4857 (the “Code”) and  paragraph 5 of  article 14 of the Labor Code Numbered 1475 that has been abrogated with the exception of Article 14,  if the employee is dismissed after the probationary period but before the end of the first year, the employer shall not be required to pay seniority indemnity.

2.  The employee shall not have the right to demand re-employment (in Turkish, “işe iade”):

As per Article 18 of the Code, “The employer who terminates indefinite-term employment contract of an employee with at least six (6) months of seniority in workplaces employing thirty or more employees, must be based on a valid reason arising from the employee’s competence or behavior or the requirements of the enterprise, workplace or business.”

Otherwise stated, if the employment contract is terminated before  completion of six (6) months, the employee does not have the right to demand re-employement alleging invalid termination of his/her employment contract.

It should be noted that the thirty (30) employees threshold is not limited to Turkey. For an international company, the number of employees working abroad will also be included to calculate the requirement of at least thirty (30) employees.

3.  The employee shall not be entitled to annual paid leave:

As per Article 53 of the Code, “Annual paid leave is granted to employees who have worked for at least one year, including the probationary period, from the day they start working at the workplace.” As mentioned above, if the termination is made within  six months, since one-year period has not been completed, the employee shall not be entitled to annual leave pay.

4.  The termination notice period shall be limited to two (2) weeks:

In accordance with Article 53 of the Code, “Before the termination of indefinite-term employment contracts, the status must be notified to the other party. For employees whose employment contracts have lasted less than six (6) months, they are considered terminated two (2) weeks after the notification is made to the other party”. The further part of the provision states that “The party who does not comply with the notification requirement must pay compensation in the amount of the wage for the notification period”.

Therefore, for the employees whose seniority in the workplace is less than six (6) months,  the employment agreement may be terminated forthwith by paying the notice pay corresponding to two (2) weeks’ salary of the employee  or it may be preferred to employ the employee for two (2) weeks instead of paying the two-week notice pay.

In any case,  good faith rules must be considered while terminating the employment contract after expiry of probationary period even evaluating termination within  six-month period following the beginning of employment. “For termination of the employment contract within the six-month period, the valid reasons set out in Article 18 are not required. It is possible to terminate the employment contract through notice of termination. Nevertheless, the employer’s termination of the employment contract a few days before the end of the six-month period in order to prevent the employee from benefiting from the job security provisions may be invalidated due to breach of good faith.” (Court of Appeals for the 9th Circuit, Basis: 2015/17876, Decision: 2015/26144, Date of Decision: 17/09/2015)