Turkey

Sources of regulation

The Employment Act (EA) No. 4857 of 2003, the Trade Unions Act of 1983 and the Obligations Act of 1926 are the sources of employment legislation in relation to termination of employment for employees falling within their scope.

In addition, collective agreements in unionized workplaces and international conventions which are ratified by Turkey may afford protection in relation to dismissal to some extent.

Civil servants and employees with an administrative employment contract are subject to different regulations and are not covered in this Digest. In Turkey, civil servants enjoy considerable job security.

Scope of legislation

The scope of the EA does not include all employees and all undertakings. Are excluded from its coverage (Art. 4 EA):

• Sea and air transport activities;
• Establishments and enterprises employing a minimum of 50 employees (50 included) where agricultural and forestry work is carried out;
• Any construction work related to agriculture which falls within the scope of family economy;
• Works and handicrafts performed in the home without any outside help by members of the family or close relatives up to 3rd degree (3rd degree included);
• Domestic services;
• Apprentices;
• Sportsmen;
• Those undergoing rehabilitation;
• Establishments employing three or fewer employees and falling within the definition given in Art. 2 of the Tradesmen and Small Handicrafts Act.

Most of these groups are covered by the Obligations Act, which does not provide job security.

On the other hand, the EA excludes (Art. 18) from the job security provisions those employees who are in the scope of the EA but employed for less than six months, employees holding managerial positions and also employees in small undertakings (up to 30 workers). 

Contracts of employment

Contracts of employment in Turkey include indefinite period, fixed-term, temporary, part-time and full-time contracts, contracts in continual and transitory work, work on call, contracts based on a gang contract.

The Turkish EA provides provisions regulating and preventing the use of temporary and fixed-term contracts (Art. 11 EA): an employment contract for a definite period must not be concluded more than once, except when there is an essential reason which may necessitate repeated (chain) contracts. Otherwise, the employment contract is deemed to have been made for an indefinite period from the beginning.

Termination of employment

The contract of employment can be terminated, without initiative of the employer or employee in certain circumstances, including by the expiry of a fixed-term contract; mutual consent of the parties; the death of the employee; and the death of the employer if it has been concluded intuitu personae of the employer.

Dismissal

There are two kinds of termination of employment contract at the initiative of the employer in Turkish Employment Law.  The first kind concerns the serving and respecting of a term of notice. The second kind is known as ‘termination without term of notice’ or ‘terminating (or breaking) the contract for just cause’. Termination that respects a term of notice is only applicable to employment contracts for an indefinite period, but termination without a term of notice (generally, for just cause) is applicable to contracts for a fixed-term, as well as to contracts for an indefinite period.

Termination by Means of Respecting a Term of Notice

Art.17 of the EA provides that an employment contract made for an indefinite period may be terminated by the employer or employee if one party gives notice to the other. The length of notice increases with the duration of employment. The notice periods can be increased if both parties agree to it. The employer may terminate the employment contract by paying in advance the wages corresponding to the term of notice. Termination of this kind is possible either without having to present any valid/reasonable cause or with a valid/reasonable cause:

Termination without having to present any valid/reasonable cause

According to Art.17 of the EA the employer, after respecting a term of notice, can terminate the employment contract of an employee who is outside of the scope of the job security provisions without having to present any  valid/reasonable cause. Termination of this sort is lawful provided the terms of notice are respected.

Irregular termination

In cases where there is a failure to comply with the requirements for giving notice or payment in lieu of such notice, the defaulting party must pay compensation equal to the wages relating to the terms of notice.

Abusive Termination

In cases where employment contracts of employees who fall outside the scope of job security provisions of the EA have been ended by the abusive exercise of the right to terminate (for example where dismissal is due to filing a grievance, or sex or maternity), the employee shall be paid compensation amounting to three times the wages for the term of notice. The Trade Unions Act (Art. 31) imposes a heavier compensation for the abusive dismissal of an employee who engages in union activities.

Discriminatory Dismissal

According to Art. 5 of the EA, except for biological reasons or reasons related to the nature of the job, the employer must not make any discrimination, either directly or indirectly, against an employee in the termination of his/her employment contract due to the employee’s sex or maternity. If the employer violates the above provision, the employee may demand compensation up his/her four months’ wages plus other claims of which he/she has been deprived. Art. 31 of the Trade Unions Act is reserved. The burden of proof in regard to the violation of the above–stated provisions by the employer rests on the employee. However, if the employee shows a strong likelihood of such a violation, the burden of proof that the alleged violation has not materialised shall rest on the employer. The arrangements in the EA (Art. 5) cover all the employees in the scope of the EA.

Termination with a valid/reasonable cause

Art. 18 of the EA states that an employer employing at least thirty employees will have to present a valid cause when laying off an employee who has worked at least six months at a particular workplace and who has an indefinite-term contract with the employer. Under this provision, the employment of an employee can only be ended for a valid reason concerning the capacity or conduct of the employee or based on the operational requirements of the undertaking, establishment or service. Art. 19 makes clear that an employee shall not be dismissed, for reasons related to the employee's conduct or performance, before being provided with an opportunity to defend him/herself against the allegations made, unless the employer cannot reasonably be expected to provide this opportunity.

Invalid Termination

In cases where employment contracts of employees who are in the scope of job security provisions of the EA have been ended without a valid reason or no reason, the employees shall be reinstated or paid compensation. The EA provides greater safeguards against discrimination in respect of employment. Termination based on discrimination and temporary absence from work because of illness or injury, which is referred to in the EA Art. 18 are not valid. The burden of proving that a valid reason exists for the termination rests on the employer. If the court finds the termination of employment not valid, it will order the reinstatement of the employee. According to the EA, the employer must reinstate the employee within a month and with back pay corresponding to up to four months’ wages which the employee may have received. If the employer fails to reinstate the employee, he/she will have to pay compensation which is determined by the court.

Discriminatory Dismissal

The arrangements in the EA Art. 5 (see above “c. Discriminatory Dismissal”) cover all the employees in the scope of the EA.

Collective Dismissal

According to the EA (Art. 29), the employer has a right of collective terminations for reasons of an economic, technological, structural or similar nature necessitated by the requirements of the enterprise, the establishment or activity.

A collective dismissal occurs when:

• in establishments employing between 20 and 100 employees, a minimum of 10 employees; and
• in establishments employing between 101 and 300 employees, a minimum of 10 per cent of employees; and
• in establishments employing between 301 and more employees, a minimum of 30 employees,

are to be terminated on the same date or at different dates within one month.

In case the employer intends to employ employees for a work with the same qualifications within six months from the finalization of mass dismissal, he/she has to call back the laid-off workers whose qualifications are suitable, giving them priority over other applicants.

Terminating the Employment Contract without Respecting a Term of Notice (Breaking the Contract for Just Cause)

 ‘Breaking’ can be defined as ‘the act by which the employer or the employee unilaterally and immediately terminates the individual employment contract for just cause. The reasons for breaking the contract for just cause are in three groups for the employee and four groups for the employer (EA Arts 24, 25), namely, reasons of health; immoral or dishonourable conduct or other similar behaviour and force majeure. There is also a fourth group for the employer which is the employee being under arrest or under custody. The employer is entitled to break the employment contract, whether for a defi­nite or indefinite period, before its expiry or without the prescribed notice periods in the above cases:

Illegal breaking of the contract

Although a labour court may rule that the reasons given to claim a just cause do not justify the breaking of a particular contract,  the employment contract is considered as terminated on the day of its breaking.

According to the EA, employees outside of the scope of the job security provisions are not entitled to reinstatement and their only remedy is compensation. It is the injured party who must prove that the contract was unjustly broken. Compensation is the  same as that for irregular termination, namely payment relating to the term of notice which should  have been respected in order to terminate the contract for an indefinite period. Concerning a contract for a definite period or for work that is precisely identified, unjustified termination  before the end of the period or before the work is finished entitles the injured party to receive compensation equal to the payment for the remainder of the period, or for the time to finish the work. And as previously remarked, the EA makes reinstatement possible for the employees within the scope of the job security provisions  if a contract is ended without a just cause.

Notice and prior procedural safeguards

The requirement for prior notice (see above “Termination by Means of Respecting a Term of Notice”) or payment in lieu of such notice has been established by the EA. Art.19 provides that the notice of termination (from two to eight weeks depending on the length of service) for employees, who are covered by job security provisions, shall be given by the employer in written form involving the reason for termination which must be specified in clear and precise terms.

In the case of a collective dismissal, the employer shall provide the union shop-stewards, the relevant regional directorate of labour and the Public Employment Office with written information at least 30 days prior to the intended lay-off. The said written communication shall include the reason for the contemplated layoff, the number and groups to be affected by the lay-off as well as the length of time the procedure of terminations is likely to take. Consultations with union shop-stewards shall deal with measures to be taken to avert or to reduce the terminations as well as measures to mitigate or minimize their adverse effects on the employees concerned.

As for other procedural requirements, see above “Invalid Termination”. Also collective agreements may contain grievance procedures and other mechanisms ensuring that employees and their union are informed of the reasons for the pending dismissal and are given the opportunity to defend any allegations made against them by the employer.

Severance pay

Under the EA transitional Art. 14, in the event of termination of the contract of employment of an employee with at least one year of service and covered by this Act by the employer for reasons other than those set forth in section 17/II of this Act (for malicious, immoral or dishonourable conduct or other similar behaviour); by the employee under the provisions of section 16 of this Act (The breaking of the contract by the employee for just cause”); or on account of compulsory military service; or for the purpose of qualifying for an old-age or disability insurance pension or a lump-sum payment from an insurance organization or a fund established by an Act; or in the event of the death of the employee; or voluntary termination of the contract by a woman employee within one year from the date of her marriage, the employer must pay seniority severance pay equal to 30 days’ wages for each complete year of service or in proportion for any fraction thereof, effective from the date of employment and for the entire duration of the contract.

Avenues for redress

The EA allows an employee to appeal against dismissal to a labour court. The primary remedy in the employment law is compensation and rarely reinstatement (see above “Irregular termination”; “Abusive Termination”; “Discriminatory Dismissal”, “Invalid Termination”; “Illegal breaking of the contract”).  An employer who infringes the provisions of EA and Trade Unions Act is also liable to major fines.

Further information

• Labour Act of Turkey (English) of 2003
• Kadriye Bakirci, Remedies Against Sexual Harassment of Employees Under Turkish Law (2001) European Public Law, 3, 473-484.
• Kadriye Bakirci, “Unfair Dismissal in Turkish Employment Law” (2004) Employee Responsibilities and Rights Journal, Volume 16 (Issue: 2), June.
• Kadriye Bakirci, “Smoking and the Workplace: Turkey” (2005) Bulletin of Comparative Labour Relations-54: Smoking and the Workplace (ed.Roger Blanpain), Kluwer Law International, The Hague/ London/ New York.
• Kadriye Bakirci, “Termination of Employment Contract” (2006) The Socio-Legal Studies Association Annual Conference 2006 hosted by the School of Law, University of Stirling, 28-30 March.
• Kadriye Bakirci, “Occupational Risks: Social Protection and Employers’ Liability in Turkish Employment Law” (2006) XVIIIth World Congress of Labour and Social Security Law, Paris, 5-8 September.
• Kadriye Bakirci, “Protection of Women Employees Before and After Childbirth in Turkish Employment Law” (2006) International Journal of Comparative Labour Law and Industrial Relations, Volume 22 (Issue 4) December.