JOB SECURITY IN TURKISH LAW
The Article 18 of the Labor Code numbered 4857 dated 22 May 2013 (in Turkish “İş Kanunu”, hereinafter referred to as the “Code”) foresees the principle of job security and states that “The employer, who terminates the contract of an employee engaged for an indefinite period, who is employed in an establishment with thirty or more workers and who meets a minimum seniority of six months, must depend on a valid reason (in Turkish, “geçerli nedenle fesih”) for such termination connected with the capacity or conduct of the employee or based on the operational requirements of the establishment or service”.
We would like to mention here that the just reasons (in Turkish, “haklı nedenle fesih”), enabling the immediate termination of the employment contract by the employee or the employer without indemnities, which are limited to the reasons enumerated in the Articles 24 and 25 of the Code, are reserved.
The Article 18 of the Code determines that the following shall not constitute a valid reason for termination:
- Union membership or participation in union activities outside working hours or, with the consent of the employer, within working hours;
- Acting or having acted in the capacity of, or seeking office as, a union representative;
- 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;
- Race, color, sex, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin;
- Absence from work during maternity leave when female workers must not be engaged in work, as foreseen in Article 74;
- Temporary absence from work during the waiting period due to illness or accident foreseen in Article 25 of the Code, subsection I (b).
Additionally, according to the said article, in the computation of the six months’ seniority, time periods enumerated in Article 66 of the Code shall be taken into account.
Besides, the “six month” minimum seniority of the employee shall be calculated on the basis of the sum of the periods of employment in different establishments of the same employer.
It is also worthy to note that, in the event that the employer has more than one establishment in the same branch of activity, the number of employees shall be determined on the basis of the total number of employees in these establishments.
The Extended Scope of Job Security as Interpreted by the Supreme Court of Appeals
The “30 employees” criterion in relation with the Article 18 closely concerns companies having an international network. Particularly, the 9th and the 22nd Civil Chambers of the Supreme Court of Appeals have taken several decisions in this respect.
As per the decision numbered 2011/131 dated 24 January 2011 of the 9th Civil Chamber of the Supreme Court of Appeals on the file numbered 2009/46271, it is explicitly stated that the “30 employees” criterion has been brought by the lawmaker in order to protect small-scale enterprises and, taking into account the fact that the Article 18 of the Code particularly aims at large-scale enterprises, it would be against the will of the lawmaker and the principle of proportionality to claim that employees who work in the Turkish branch of an international company shall not benefit from job security on the grounds that less than 30 employees are employed by the Turkish branch of the said international company. In parallel with this argument, the 9th Civil Chamber of the Supreme Court of Appeals concluded that the employees who are employed by the Turkish branch of an international company, who employs at least 30 employees worldwide, shall be subject to job security, even though this Turkish branch, who is actually a separate legal entity incorporated as per the Turkish laws, does not employ more than 30 employees.
Our Firm remains at your disposal for any further clarifications you may require.