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NECESSITY OF OBTAINING THE EMPLOYEE’S DEFENSE IN WRITING BEFORE TERMINATING HIS / HER EMPLOYMENT CONTRACT

Termination of an Employment Contract in the Labor Law:

Termination is a dissolving unilateral explicit declaration of intent that creates a new legal situation when it reaches to the opponent. Termination gives the right owner the power of breaking the contract immediately or after a certain period of time through a unilateral declaration of intent. As per article 19 of the Labor Code numbered 4857 and dated 22 May 2003 (the “Code”), the notice of termination shall be given by the employer in written form involving the reason for termination which must be specified in clear and precise terms.

There are two types of unilateral termination regulated expressly under Turkish law; (i) Termination with notice based on valid grounds (in Turkish, “geçerli nedene dayalı ihbar süreli fesih bildirimi”)  and (ii)  Termination  based  on justified grounds (in Turkish, “haklı nedene dayalı fesih bildirimi”). In order to terminate the indefinite-period employment contract of an employee having at least 6 months’ service in a workplace operating with at least 30 employees; the employer must present  a  valid ground  either (i) stemming from  the  capacity or conduct of  the  employee

or (ii) stemming from the requirements of the establishment, workplace or the job. Article 19 of the Code requires the employer to provide an opportunity to the employee to defend himself/herself against the allegations made related with his/her conduct or performance.

On the other hand, the employer’s right to break the employment contract depending on justified grounds (in Turkish, “haklı nedenle fesih”) in accordance with article 25/II of the Code (for instance, for serious misconduct or malicious or immoral behavior of the employee) is reserved.

Valid Grounds for Termination with Notice:

As per article 18 of the Code, the termination with notice shall depend on a valid reason for the employees who work with an indefinite- period employment contract for 6 months or more in a work place employing at least 30 employees. These valid grounds shall arise from the capacity or the competence or the conduct of the employee or from the requirements of the establishment, the work place or the job. In other words, there should be problems in the employee’s relations with his/her coworkers and/ or superiors and/or employer, but not as the ones limitedly listed in article 25/II of the

Labor Code regarding the termination of employment for justified grounds.

When is the Defense of the Employee Required by Law?

As per article 19 of the Code, if the employment contract of the employee is terminated depending on the reasons arising from the conduct or the performance of the employee (the employer’s right as per article 25/II of the Code being reserved), the defense of the employee is strictly required. The term “performance” used in the wording of the relevant provision shall be construed as including capacity or the competence of the employee.

What is the Procedure that should be followed by an Employer to Get a Legally Valid Defense?

As per article 19 of the Code, the employment of an employee engaged under a contract with an open-ended term shall not be terminated for reasons related to his/her conduct or performance before he/she is provided with an opportunity to defend himself/herself against the allegations made.

Although there is not a clear regulation in the Labor Code concerning the procedure to be followed by the employer whilst obtaining the employee’s defense, the Supreme Court has specified some main principles. According to these principles, the defense of the employee shall be obtained before the termination of the contract. The defenses to be obtained at the time of termination or during the period of notice shall legally be invalid. The employee shall be invited for defense with a letter of invitation before termination and in the letter of invitation; the reason that causes the termination of the employment shall clearly and accurately be stated. Also it is important to remind the employee that if he/she is not ready at the specified place on the specified day and time or if he/she does not present a defense in writing, he or she will be accepted as waived from his/her right of defense.

Employee is free to make a choice between giving an oral defense or a written defense because there is no explicit provision on this issue in the Code. However, since providing an opportunity to the employee to defend himself /herself is a matter that can directly affect the validity of termination and in case of any disputes the burden of proof is on the employer, considering the practices of the Supreme Court, it is always recommended to send an invitation of defense in writing to the employee and also to request a defense in writing from the employee.

The Employer shall always give a reasonable time to the employee to prepare his/her defense. Although there is not a certain regulation defining “reasonable time”, 2 or 3 days are generally accepted as reasonable. The employee has the right of making his/her own defense alone or preparing it together with his/her lawyer.

If the employee explicitly refrains from giving defense, it is recommended to the employer to issue a minutes explicitly evidencing/explaining the situation bearing the signatures of at least two other employees. It will be more preferable, if one these signatures belongs to the superior of the employee refraining from giving defense.

What is the Importance of Obtaining the Employee’s Defense for an Employer?

According to article 19/2 of the Code; “The employment of an employee engaged under a contract with an open-ended term shall not be terminated for reasons related to the worker’s conduct or performance before he is provided an opportunity to defend himself against the allegations made.

The employer’s right to break the employment contract in accordance with Article 25/II of the Labor Act (for serious misconduct or malicious or immoral behavior of the employee) is, however, reserved.”

It is very clear from  the wording of the above provision that terminating an open-ended contract for reasons related to the employee’s conduct or performance without providing an opportunity to the employee to defend himself/ herself may directly conclude with the invalidity of the termination. Also in case of any legal actions especially in reemployment lawsuits (in Turkish, “işe iade davası”), for the employer, the defense of the employee shall be an important proof for the legal acceptability of a termination based on valid grounds.

Our Firm remains at your disposal for any further clarifications you may require.

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