DIFFERENCES BETWEEN TERMINATION OF AN EMPLOYMENT CONTRACT FOR VALID REASON AND TERMINATION FOR JUSTIFIED REASON

Termination for just cause is the employer’s termination of the employment contract based on one of the circumstances of Article 25 of the Labor Law No. 4857. In case of justifiable termination, it is generally not possible for the employee to exercise his or her rights such as severance and notice pay.

Termination for valid reason is the reason for termination that must occur in order to dismiss workers with job security. If there is a justified reason, the employment contract can be terminated regardless of whether the employee has job security or not. In case of termination for valid reason, the employee is obliged to pay severance and notice pay, if applicable.

Termination with Valid Reason and Job Security Status

Dismissal of a worker with job security is only possible in cases of termination for valid reason. With the existence of the conditions specified in the law, job security occurs automatically. The conditions required for job security are listed in Article 18 of the Labor Law and are as follows:

• Being employed in a workplace employing 30 or more workers
• Having been working in the same workplace for at least 6 months
• Being subject to an indefinite-term employment contract
• Not being an employer representative

If the 4 conditions listed above are met, the employee will have the right to job security. If even one of the conditions is not met (for example, if a fixed-term employment contract has been made, the worker is the employer’s representative who has the authority to hire workers, if less than 30 workers work in the employer’s workplaces in Turkey, if the worker has a seniority period of less than 6 months), job security does not occur.

Cases of Termination with Valid Reason

According to the first paragraph of Article 18 of the Labor Law titled “Basing termination on a valid reason”, “…the employer who terminates an indefinite-term employment contract must rely on a valid reason arising from the competence or behavior of the employee or the requirements of the enterprise, workplace or job.” The concept of valid reason is not explained in the article, but it is stated which situations can be valid reasons. However, in the justification of the article, “The qualification or behavior of the worker constitutes reasons related to the personality of the worker; Reasons arising from the requirements of the enterprise, workplace or job are related to the workplace. Stating these reasons in the article concretizes the concept of valid reasons to a certain extent…. Although the valid reasons in terms of this article are not as serious as those stated in Article 25, they are situations that negatively affect the normal course of work and the workplace. For this reason, the possible reasons for valid termination may be reasons that seriously negatively affect the employee’s employment obligation due to reasons arising from the employee or the workplace and do not allow him to fulfill his employment obligation properly. As a result, in cases where the continuation of the employment relationship is important and cannot be reasonably expected for the employer, it will be necessary to accept that the termination is based on valid reasons. “Valid reasons arising from the competence and behavior of the worker are reasons other than those specified in Article 25 and that significantly negatively affect the performance of work in the workplace.” The concept of valid reason has been tried to be explained by saying:

Valid reasons are classified into two groups according to the regulation in Article 18 of the Labor Law and the explanations in the justification of this article. According to this classification, valid reasons arising from the worker’s inadequacy and behavior are related to the personality of the worker, while reasons arising from the requirements of the enterprise, workplace or job constitute valid reasons arising from the workplace.

In its decisions, the Supreme Court has given a limited number of examples of situations that may constitute termination for valid reason as follows:

• Don’t Procrastinate
• Inciting Colleagues Against Employer
• Making Long Phone Calls That Disrupt Work Flow
• Lower Performance than Expected [Decision of the General Assembly of the Supreme Court of Appeals, 2015/9- 1598E- 2017/ 643K, dated 5.4.2017]
• Making Coming Late to Work a Habit
• Worker’s Actions and Words Exceeding the Dimension of Criticism [Decision of the 22nd Civil Chamber of the Supreme Court of Appeals, 2016/31130E-2016/26794K, dated 12.12.2016]
• Misuse of Workplace Resources [Decision of the 9th Civil Chamber of the Supreme Court of Appeals, 2006/30107E-2007/2011K, dated 05.02.2007]

Difference Between Valid Reason and Just Cause According to the Supreme Court

The Supreme Court makes decisions on whether the reason is valid or justified, depending on whether the foundation of trust between the employee and the employer has collapsed. “…The behavior of the employee that may lead to a valid termination is different from the justified reasons stipulated in Article 25 of the Labor Law, which gives the employer the right to terminate immediately. During the trial, the weight of these reasons should be evaluated according to the characteristics of each case. If it becomes unbearable for the employer to continue the employment relationship as a result of the employee’s behavior that does not comply with the rules of morality and good faith, in other words, if the trust is broken, the employer has the right to terminate immediately for justified reason. On the other hand, if the employee’s behavior is not severe enough to collapse the foundation of trust that must exist between the parties, does not make the continuation of the employment relationship completely unbearable, but disrupts the normal functioning of the business, negatively affects the harmony in the workplace and the employer cannot be expected to carry out the employment relationship normally for this reason, Article 18/1 of the Labor Law . A valid right of termination arises in accordance with Article (Now Labor Law Article 18). [Decision of the 9th Civil Chamber of the Supreme Court of Appeals, 2009/39671E-2010/37399K, dated 13.12.2010]

Although the employee’s behaviors that require termination of the employment contract for valid reasons are generally faulty behaviors contrary to the employment contract, unlike those that require termination for just cause, they coincide with reasonable and legitimate reasons that comply with objective rules of good faith and do not constitute abuse of rights. In addition, the behavior of the worker that causes negativities in the workplace, even if he has a slight fault, requires the termination of the employment contract for a valid reason, therefore “a socially negative behavior of the worker, an attitude that is socially and ethically unacceptable, is valid if it does not have any negative impact on the production and employment relationship process in the workplace.” why it doesn’t count.”[ Judge. 9. H.D. T. 09.02.2009, E. 2008/13284, K. 2009/1753]. On the other hand, the employee’s gross and serious faulty behavior targeting the employer or workplace constitutes a justified reason for termination of the employment contract. The degree of care to be expected from the worker’s qualifications and knowledge is also important in determining whether the worker is at fault or the degree of his fault.

According to another decision of the Supreme Court regarding the difference between valid reason and just cause, “…The plaintiff’s employment contract was terminated with valid reason, due to the disruption that occurred in the workplace as a result of the sick leave reports he received frequently and the negativities caused by this situation, including his defense. In his defense, the plaintiff explained that the reports he received were due to illness. As stated in the justification of Article 18 of the Labor Law, the employee frequently falling ill and taking a rest report is a valid reason for termination for the employer…”, thus, it does not accept a fault serious enough to consider the employee frequently falling ill and receiving a medical report as a justified reason in favor of the employer, and valid for the termination of the employment contract. He accepted it as flawed enough to count why. [Judgement 9. H. D., 9.12.2018 T, 2018/4342 E., 2018/23634 K]

Supreme Court Practice in Termination with Just Cause

The employer concludes the employment contract according to Labor Law art. According to Article 25/II, if the employee is terminated based on just cause for situations that are contrary to the Rules of Ethics and Good Faith and the like, the employee will not be entitled to severance and notice pay. Below, the Supreme Court decisions and examples will be given for the justifiable reasons listed in the law, and the situations in which termination for just cause can be applied by the employer will be examined.

Worker’s Misleading the Employer: “…The plaintiff, in the form petition he filled out while entering the defendant’s workplace as a security guard, stated that he had a criminal record, even though he did not have one, and this false statement was revealed by the defendant employer while the service contract was ongoing, and the service contract was terminated within 6 days of work. It is understood from the content of the file and especially from the response letter of the Public Prosecutor’s Office. This action of the plaintiff constitutes the situation in paragraph 17/II-a of the Labor Law No. 1475. In this case, it should be accepted that the defendant employer terminated the contract for justified reasons and it should be decided to reject the compensation requests due to termination.” The point that needs to be taken into consideration here is that the employee’s untrue statements in order to mislead the employer (misleading by a third party is outside the scope of the provision) or hiding some information by keeping silent, affect the establishment of the contract, as these are essential elements of the contract. Otherwise, in case the employer terminates the employment contract, the termination will not be based on just cause and may be a valid reason for termination depending on the nature of the deception in the incident.

Worker's Words and Behaviors That Affect Honor and Dignity:

“In the concrete case, it is understood from the analysis of the minutes and telephone records in the file that the plaintiff severely swore at the employer and that the employer terminated his employment contract for just cause within the six-day period. In this case, although the severance and notice pay request should be rejected, it is a reason to overturn the acceptance.” [Supreme Court 7th Civil Chamber dated 07.05.2015, 2015/4806E., 2015/8302K]. However, the Supreme Court accepts that insulting and swearing at people who are not family members of the employer, but with whom he has a close relationship or who is a partner in another business, or making unfounded statements and accusations to these people, constitutes a valid reason for termination of the employment contract, especially in small businesses where the employer’s person is important. [22nd Civil Chamber of the Supreme Court of Appeals, dated 22.09.2011, 2011/346E, 2011/1013K]. On the other hand, the words and actions of the worker that do not reach the level of insult but disrupt the working order and peace should also be accepted as termination for valid reason. If the employee’s behavior that is degrading to honor and dignity occurs as a result of the employer’s provocation, it is accepted that the employment contract can be terminated with a valid termination reason. ]

Employee Sexually Harassing Another Employee of the Employer:

“In the petition dated 18.07.2008 of the victim who is alleged to have been subjected to sexual harassment in the file, the plaintiff said to her, “You are very beautiful, I would have liked to meet you a year ago, I would have been single then and I would have started a relationship with you…” and then he started to stay away from her, 11.07 .In 2008, he called her to the office, ……he tried to hold her hand by force and she told him that he was talking to her and that she was married, …. In the evening he said to him, “Don’t forget to bring your picture tomorrow. He sent her a message saying “Good night”, the next day he threatened her and said “don’t tell anyone, I’ll get you fired”, he said “I’ll rent you a house from here”, he invited her to his house many times, he stood in front of her while she was having dinner and looked at her carefully,When he emphasized that he was uncomfortable, he said to him, “You will go on Monday anyway, let me take care of you to my heart’s content, let’s spend some time with you,” he said, “If you don’t have credit, let me buy it and meet your needs,” he said that he loved himself, not his wife, that he married his wife by the force of his father and mother, and that he repeatedly called her on his mobile phone. that he was trying to take his picture, …. He said that he wanted to hold her hand, that he was lost in the depths of her eyes, “You don’t like me at all, you always like jackals anyway. It is understood that he said, “That’s exactly what you say.” Since the plaintiff’s actions comply with Article 25/II-c of Law No. 4857 and give the employer the right to justified termination, the severance and notice pay requests should be rejected, while the written decision was erroneous and required reversal. ”[2010/5209E., 2012/12363K of the 9th Civil Chamber of the Supreme Court of Appeals, dated 11.04.2012.] In other decisions of the Supreme Court, another worker hugged the female worker from behind while cooking in the warehouse [9th Civil Chamber of the Supreme Court of Appeals, dated 12.10.2009, 2009 /115E., 2009/26672K] molestation [Supreme Court 9th Civil Chamber dated 10.11.2005, 2005/6471E., 2005/35643K], being forced to have emotional relationships [Supreme Court 9th Civil Chamber dated 08.03.2005, 2004/13286E., 2005/7706K], a worker saying offensive words to another worker and holding her hand are considered as justifiable termination cases within the scope of sexual harassment.

Worker’s Teasing:

Harassment that leads to justifiable termination may occur in the form of verbal or verbal rape against the employer, a family member, an employee of the employer, or the employer’s representative. Essentially, teasing is a special case of breach of the duty of loyalty. The harassing worker puts pictures of cows with his name written where the other worker can see [22nd Civil Chamber of the Supreme Court of Appeals, 2011/420E., 2011/3161K. dated 20.10.2011] or utters insulting and threatening words [22nd Civil Chamber of the Supreme Court of Appeals 17.03.2008 dated 2007/27583E., 2008/5294K. ] constitutes grounds for justified termination.

Worker's Action Against the Prohibition of Alcohol and Drug Use:

According to this reason, while coming to the workplace with drugs is a justified reason for termination, coming to the workplace with alcohol does not constitute a justified termination reason unless there is a state of intoxication. However, consuming alcohol in the workplace is prohibited. The Supreme Court has clarified this distinction in various decisions. “It is understood that the plaintiff consumed alcohol some time before coming to the workplace. The employer did not claim that any adverse events occurred due to the influence of alcohol. There is no evidence in this direction in the file. It is also clear that the plaintiff did not consume alcohol at work. It has not been proven that he came to work drunk. Although the plaintiff’s behavior constitutes a valid reason for termination in terms of the concrete incident, it should be accepted that the termination of the employment contract of the plaintiff, who had no previous disciplinary punishment on this or a similar issue and who had nearly 4 years of service, was not based on a justified reason. Therefore, while notice and severance pay should be accepted, the court’s written rejection of both requests was erroneous and required reversal. [22nd Civil Chamber of the Supreme Court of Appeals, dated 01.03.2016, 2014/34564E., 2016/5955K]. “In the concrete case, it is established through the scope of the entire file and witness statements that the plaintiff, while working at the restaurant, brought alcoholic beverages from outside into the restaurant together with two other employees and drank it. According to the repealed Article 84 of the Labor Law No. 4857, which was in force as of the date of termination, it is prohibited to come to the workplace drunk or on drugs and to consume alcoholic beverages or drugs in the workplace. In this case, the termination by the employer is based on just cause. This being the case, while the plaintiff’s request for notice and severance pay should be rejected, the decision to accept it in writing based on incorrect evaluation is contrary to procedure and law and necessitates reversal.” ]

Worker's Behaviors That Do Not Comply with Integrity and Loyalty:

Violation of the employee’s duty of loyalty constitutes a justifiable reason for termination, such as “the employee’s behavior that does not comply with honesty and loyalty, such as abusing the employer’s trust, committing theft, revealing the employer’s professional secrets.” There are many examples on this subject in the Supreme Court decisions. Accordingly, the worker tore the photo of the former general manager on the managers’ board in the personnel corridor and put it back on the board in its torn form [Supreme Court 9th Civil Chamber dated 25.10.2010 2010/13062E., 2010/30377K. ], not issuing a receipt for the fee he received from a non-member guest at the tennis court where he worked and not putting the fee in the safe [Supreme Court 9th Civil Chamber dated 28.01.2010, 2008/14806E., 2010/1477K], hiding some of the products sold in the store by store employees in order to buy them at a discount [Supreme Court 9 .Legal Office dated 29.05.2012 2012/4765E., 2012/18802K], the index reading officer understates the water consumption of the subscriber who owns his own home in order to pay less water money [ 9th Civil Chamber of the Supreme Court of Appeals dated 08.05.2012 2009/40420E., 2012/16089K ], The document containing the worker’s request to receive more tax refund by issuing an expense notification contrary to the legislation. to give to the employer [Supreme Court 9th Civil Chamber dated 24.04.2012 2009/36412E., 2012/14051K], Borrowing from the distributor with whom the employer has commercial relations [4 9th Civil Chamber of the Supreme Court of Appeals dated 05.04.2012 2010/4546E., 2012/11589K. ], the worker trying to take some of the goods produced in the workplace into a parcel and taking them out of the workplace [Supreme Court 9th Civil Chamber dated 21.03.2012 2009/49409E., 2012/9375K.], the purpose of earning while the worker is on sick leave outside working hours or on paid or unpaid leave. and the act of working outside [Supreme Court. 9th Civil Chamber dated 21.03.2012, 2012/6287E., 2012/9365K.] have been accepted as actions that do not comply with honesty and loyalty.

If the Worker is Convicted of a Crime Committed at the Workplace:

If the employee commits a crime at the workplace that is punishable by imprisonment for more than seven days and whose punishment is not suspended, it will be possible for the employer to resort to termination without prejudice. If the penalty imposed by the judge is less than seven days, the employer will not have a justified reason for termination. Likewise, a heavy fine does not give rise to the right of termination without prejudice. On the other hand, the outcome of the criminal case must be waited for the employer to exercise its right of termination. For this reason, termination made during the prosecution phase or before the verdict is finalized is not considered justified.

Employee’s Absence from Work:

If the employee does not attend work for two consecutive working days, or twice in a month, on the next working day of any holiday, or three working days in a month, without taking permission from the employer or based on a justified reason, the employer may terminate the employment contract without prejudice. “Indeed, as proven by the plaintiff’s claim, the plaintiff believed that the civil servants were given administrative leave on Friday, October 3, 2008, even though it was normal work, after the Eid al-Fitr on Tuesday, September 30, 2008, Wednesday, October 1, 2008, and Thursday, October 2, 2008, and that he, too, was on administrative leave. He admits that he did not come to work. Again, as in the plaintiff’s admission, the defendant employer warned the plaintiff to come to work the next day, Saturday, but the plaintiff declared that he could not come to work because he was out of town. The administrative permission granted by the state is for civil servants and does not include workers working in private workplaces. The plaintiff has not proven that the employer gave administrative leave for Friday. With all these facts, it is established that the plaintiff was absent for two consecutive days without permission or excuse. As such, the employer’s termination based on absenteeism was justified and it was necessary to overturn the acceptance, although it should have been decided to reject the plaintiff’s request for severance and notice pay. ‘[2013/4569E., 2013/12140K. of the 7th Civil Chamber of the Supreme Court of Appeals, dated 28.06.2013.] As can be seen in the decision, the days when the worker does not come to work must be the days when it is necessary for the worker to work. According to another case of absenteeism specified in the law, if a person does not attend work on the business day following any holiday twice within a month, the absence will constitute a justified reason. Since any holidays are mentioned in the law, these days do not have to be public holidays. The last situation is the termination of the employment contract for justified reasons due to the employee not attending work for three working days within a month. A one-month period here does not mean a calendar month. What should be understood as a month is the period between the first day that the worker does not come to work and the day one month later, which coincides with the same day. The employee’s absence must be unexcused. If it is determined by the employer that the employee is absent in this way, in accordance with the decisions of the Supreme Court, an absence report must be kept and the witnesses in this report must be heard by the court.

Worker Insisting on Not Doing His Duty Even When Reminded:

It is not necessary for the worker not to perform the duties that he is responsible for, but rather “the worker must insist on not performing the duties that he is responsible for even though he is reminded of them.” According to the Supreme Court, it is not enough for the employee to fail to perform his duty only once despite being reminded. The action of not doing it must be continuous [Supreme Court 9th Civil Chamber dated 05.05.2008, 2007/32507E., 2008/11105 K., Supreme Court of Appeals 9th Civil Chamber dated 28.02.2012, 2009/45080E., 2012/6361K]. However, The worker’s work is inadequate, poor, despite warnings or performs it inadequately [9th Civil Chamber of the Supreme Court of Appeals, dated 26.03.2012, 2009/49729E., 2012/9982E.] or if this action causes negativities in the workplace, the employment contract may be terminated by the employer for a valid reason.

Worker Endangering or Harming the Safety of the Work:

The employment contract may be terminated by the employer if “the worker, due to his own will or negligence, endangers the safety of the job, causes damage or loss to the machines, installations or other goods and materials that are the property of the workplace or are at his disposal but are not property, to the extent that he cannot pay with the amount of his thirty-day wage.” In one decision of the Supreme Court, it was stated that the worker had taken cigarettes and lighters to the mine [Supreme Court 9th Civil Chamber dated 13.06.2006, 2006/14535E., 2006/17207K], and in another decision, it was stated that there were no flammable substances in the area where the worker smoked, but the cigarettes were placed in the area where the styrofoam was located. due to dismissal [Supreme Court 9th Civil Chamber 02.11.2004 dated, 2004/1834E., 2004/24692K.],It has been stated that workplace safety is in danger and will be a reason for termination with just cause. On the other hand, in order to cause damage or loss to the employer’s property or to someone else’s machinery, installations, goods and materials in the workplace, the damage must exceed the employee’s 30-day wage amount. It is accepted by the Supreme Court that this fee should be calculated on the bare gross wage. [Supreme Court 9th Civil Chamber dated 26.01.2010, 2009/25906E., 2010/1326K]

CONCLUSION

The reason for termination by the employer is important in determining whether severance and notice compensation receivables will be paid. When the employer terminates the employment contract for a valid reason, the employee is entitled to severance and notice pay if he/she deserves it and if the conditions are met. The employer may terminate the employment contract for justified reasons, Art. If the employee is terminated according to paragraph 25/II, he is not obliged to pay severance and notice pay to the employee. If the employer terminates for other justified reasons listed in the law, he/she will have to pay severance pay. In case of termination by the employer for a justified and valid reason, the employee has a one-month grace period before he/she can file a reinstatement lawsuit against the employer. In case of justifiable termination, a reinstatement lawsuit must be filed within one month from the date of termination, whereas in valid reason terminations, a reinstatement lawsuit can be filed within one month from the date the employee receives notification of the termination notice period.

While the just cause is in cases where the continuation of the employment contract is severe and unbearable that cannot be expected from the parties to the employment contract, the valid reason does not require the immediate termination of the employment contract, but is due to the fact that it causes negativities in the workplace and negatively affects the employment relationship.