Although it is claimed that employment contracts are terminated on the basis of justifiable reasons indicated in Articles 24 and 25 of the Labor Law, if there is no such reason in reality or if the termination right has not been used within the foreclosure period or if the employment contract has not been duly terminated, unjust termination will occur.
Employee’s Right to Break The Contract for Just Cause
Article 24 of the Labor Law regulates employees to terminate their labor contract for justified reasons. According to this article, the employee can terminate the contract under three conditions. These conditions;
For reasons of health;
If the performance of the work stipulated in the contract endangers the employee’s health or life for a reason which it was impossible to foresee at the time the contract was concluded;
If the employer, his representative or another employee who is constantly near the employee and with whom he is in direct contact is suffering from an infecting disease or from a disease incompatible with the performance of his duties, employee can terminate the contract without complying with the notification periods.
For immoral, dishonourable or malicious conduct or other similar behaviour;
If, when the contract was concluded, the employer misled the employee by stating the conditions of work incorrectly or by giving him false information or by making false statements concerning any essential point of the contract;
If the employer is guilty of any speech or action constituting an offence against the honour or reputation of the employee or a member of the employee’s family, or if he harasses the employee sexually;
If the employer assaults or threatens the employee or a member of his family to commit an illegal action, or commits an offence against the employee or a member of his family which is punishable with imprisonment, or levels serious and groundless accusations against the employee in matters affecting his honour;
If, in cases where the employee was sexually harassed by another employee or by third persons in the establishment, adequate measures were not taken although the employer was informed of such conduct;
If the employer fails to make out a wages account or to pay wages in conformity with the Labour Act and the terms of the contract;
If, in cases where wages have been fixed at a piece or task rate, the employer assigns the employee fewer pieces or a smaller task than was stipulated and fails to make good this deficit by assigning him extra work on another day, or if he fails to implement the conditions of employment, employee can terminate the contract without complying with the notification periods.
Force majeure;
Force majeure necessitating the suspension of work for more than one week in the establishment where the employee is working, employee can terminate the contract without complying with the notification periods.
The right to break the employment contract for the immoral, dishonourable or malicious behaviour of the other party may not be exercised after six working days of knowing the facts, and in any event after one year following the commission of the act, has elapsed.
Employee's Unjust Termination
If the employee terminates the indefinite term employment contract without complying with the notification periods, he/she has to pay notice compensation to the employer. Notice periods;
2 weeks for the worker whose job lasted less than 6 months,
4 weeks for a worker whose job lasts between 6 months and 1.5 years,
6 weeks for a worker whose job lasts between 1.5 years and 3 years,
8 weeks for the worker whose job lasts more than 3 years.
The employer has the right to demand compensation in case the employee unfairly terminates the contract in fixed-term employment contracts subject to the Code of Obligations. This situation is shown in article 439 of the Turkish Code of Obligations.
The Breaking of the Labor Contract by the Initiative of The Employer
Article 25 of the Labor Law regulates the employer to terminate the employment contract for justified reasons. According to this article, the employer can terminate the contract under three conditions. These conditions;
For reasons of health;
If the employee has contracted a disease or suffered an injury owing to his own deliberate act, loose living or drunkenness, and as a result is absent for three successive days or for more than five working days in any month.
If the Health Committee has determined that the suffering is incurable and incompatible with the performance of the employee’s duties, the employer can terminate the contract without complying with the notification periods.
For immoral, dishonourable or malicious conduct or other similar behaviour;
If, when the contract was concluded, the employee misled the employer by falsely claiming to possess qualifications or to satisfy requirements which constitute an essential feature of the contract, or by giving false information or making false statements;
If the employee is guilty of any speech or action constituting an offence against the honour or dignity of the employer or a member of his family, or levels groundless accusations against the employer in matters affecting the latter’s honour or dignity;
If the employee sexually harasses another employee of the employer;
If the employee assaults or threatens the employer, a member of his family or a fellow employee or if the employee comes to the workplace drunk or on drugs or uses these substances in the workplace,
If the employee commits a dishonest act against the employer, such as a breach of trust, theft or disclosure of the employer’s trade secrets.;
If the employee commits an offence on the premises of the undertaking which is punishable with seven days’ or more imprisonment without probation;
If, without the employer’s permission or a good reason, the employee is absent from work for two consecutive days, or twice in one month on the working day following a rest day or on three working days in any month;
If the employee refuses, after being warned, to perform his duties;
If either wilfully or through gross negligence the employee imperils safety or damages machinery, equipment or other articles or materials in his care, whether these are the employer’s property or not, and the damage cannot be offset by his thirty days’ pay, the employer can terminate the contract without complying with the notification periods.
Force majeure:
Force majeure preventing the employee from performing his duties for more than one week.
If the employee is detained or arrested, if the absenteeism exceeds the notification period, the employer may terminate the contract without complying with the notification periods.
The right to break the employment contract for the immoral, dishonourable or malicious behaviour of the other party may not be exercised after six working days of knowing the facts, and in any event after one year following the commission of the act, has elapsed.
Unjust Termination of the Employer
If the employer terminates the employment contract without a just cause, the employee may file a notice pay, severance pay and reemployment lawsuit within the scope of job security.
Employee may request notice pay, severance pay and unfair termination indemnity in employment contracts that are not covered by job security.
In the event that fixed-term employment contracts are unfairly terminated by the employer, the employee cannot file a reemployment lawsuit.
Unjust Termination Compensation
In case of unjust termination of the employment contract, the employer has to pay a separate compensation from the termination notice period for indefinite-term employment contracts, and from the compensation to be paid in the remaining wage amount for certain employment contracts. This is called unjust termination compensation. Unjust termination compensation is at the discretion of the judge, but the amount of compensation to be determined cannot exceed the 6-month wage of the employee.
Unjust termination indemnity is applied in indefinite or definite term business relationships subject to the Labor Law, which are outside the scope of the Code of Obligations and job security.
The judge decides by taking into account all the facts and circumstances of the concrete case while making an award for unjust termination compensation.
Unjust termination compensation is calculated over the basic wage of the employee.