Dismissal Due to Justified Termination

According to the definition in the Labour Law No. 4857, a real person who works on the basis of an employment contract is called an employee, a real or legal person who employs employees or institutions and organisations without legal personality is called an employer, and the relationship established between the employee and the employer is called an employment relationship. As a result of the realisation or non-realisation of certain situations, both the worker and the

Dismissal Due to Justified Termination

According to the definition in the Labour Law No. 4857, a real person who works on the basis of an employment contract is called an employee, a real or legal person who employs employees or institutions and organisations without legal personality is called an employer, and the relationship established between the employee and the employer is called an employment relationship. Both the employee and the employer have the right to terminate this contract without waiting for the end of the duration of the employment contract or the end of the notice period, as a result of the realisation or non-realisation of certain situations. This situation is called ‘just cause termination’.

According to the provisions of the Labour Law, the termination of the employment contract differs according to whether the employment contract in question is fixed-term or indefinite-term. Indefinite-term employment contracts are subject to termination. In other words, the parties may terminate the employment contract by complying with the notice periods specified in the law. In fixed-term employment contracts, there is no obligation to comply with these notice periods. In other words, the parties are not obliged to make a notification. However, of course, the party terminating the contract has to pay some compensation.

In termination for just cause, it does not matter whether the contract is fixed-term or indefinite-term. In the presence of justified grounds, the parties may terminate the contract immediately without complying with the notice and notification periods.

What is Termination for Just Cause in Employment Contract?

Termination for just cause means that both the employee and the employer can terminate the contract without waiting for the notice and notification periods in indefinite-term employment contracts and without the obligation to pay compensation in fixed-term employment contracts.

In order to be able to terminate for just cause, some conditions in the law must be met. These conditions in the law vary depending on whether the party terminating the contract is an employee or an employer. For this reason, termination for just cause should be examined under different headings in terms of reasons, conditions and consequences.

Can the Employee Terminate the Contract for Just Cause?

Termination for just cause is a type of termination in which the employee can be entitled to severance pay, which he would not be entitled to if normal termination occurred. For this reason, it is of great importance for the employee to terminate the employment contract based on just cause.

In the Labour Law No. 4857, the reasons for termination of the employee for just cause are discussed under 3 main headings: health problems, failure to comply with the rules of morality and good faith and compelling reasons. We will examine these headings in detail.

1. Justified Termination of the Employee for Health Reasons

According to the regulation in the Law, justified termination of the employee due to health problems is foreseen in 2 cases

a) If the performance of the work that is the subject of the employment contract is dangerous for the health or life of the worker for a reason arising from the nature of the work.

b) If the employer or another worker with whom the worker is constantly in close and direct contact is infected with a contagious disease or a disease incompatible with the worker’s work.

The above-mentioned reasons must be proved by the employee with appropriate documents. A committee report from a full-fledged state hospital or a medical report from a university hospital can be given as examples of these documents.

The employee who will terminate the contract can use the right to terminate for just cause as long as he fulfils the condition of notifying the employer. If the employee wishes, he/she can send a notice to the employer to correct this situation. In addition, no time limit is stipulated for the employee to exercise the right of justified termination for health reasons.

2. Right of Justified Termination onthe Grounds ofCases Incompatible with the Rules of Ethics and Good Conduct and Similar Reasons

The reasons to be analysed under this heading are quite comprehensive. Some situations that do not comply with the rules of morality and good faith are conditioned separately in terms of both the application by the employer and the application by another employee or third parties. In order to be explanatory, it is necessary to examine by making some groupings.

A-) Providing False or Misleading Information to the Employee by the Employer

According to Article 24/2-a of the Labour Law No. 4857,

‘If the employer misleads the employee by showing false qualifications or conditions about one of the essential points of this contract or by giving information or saying words that are not in accordance with the truth’ constitutes the right of termination of the employee for just cause.

The employment contract is a contract based on the relationship of trust between the employer and the employee. For this reason, it is a situation that damages the relationship of trust between the two parties if the employer provides the employee with some information that does not correspond to the reality during the establishment of the employment contract.

As can be understood from the provision of the article, such false and misleading information must be given at the time of the employment contract.

The employer is obliged to provide accurate and complete information to the employee about essential issues such as the nature of the work, working conditions, occupational safety, the nature of the work, wages and health risks. False or misleading information may prevent the employee from doing his/her job correctly or may create risks in terms of occupational safety.

Providing false information constitutes a breach of the employer’s obligation to take the necessary measures in terms of occupational health and safety. Violation of this obligation entitles the employee to just cause termination and the employee may claim severance pay in this case.

B-) Sexual Harassment of the Employee

Sexual harassment by the employer is among the reasons that allow the employee to terminate his/her employment contract with just cause under Article 24/II-b of the Labour Law No. 4857.

The workplace constitutes the employer’s sphere of dominance and the employer’s obligation to supervise the employee requires the protection of the employee, no matter from whom this sexual assault comes. For this reason, the fact that the act of harassment is committed by another employee or a third party (for example, a customer) also entitles the employee to direct termination for just cause.

In accordance with the law, the employer must be notified that the employee has been sexually harassed by another employee or third parties and must be asked to take the necessary measures. If the sexual harassment is known or can be known by the employer, the employee does not need to report the situation separately. The employer’s measures should be aimed at preventing the recurrence of the incident. If such measures are insufficient, the employee may be entitled to severance pay by terminating the employment contract for just cause.

C-) Bad Behaviour of the Employer towards the Employee or the Employee’s Family

According to Article 24/2-b of the Labour Law, if the employer utters words or behaves in a way that touches the honour and reputation of the employee or one of his family members, the employee has the right to terminate the contract for just cause.

Everyone has the right to live and be treated in a manner befitting human dignity. For this reason, the employee may terminate the contract immediately as a result of insulting words or behaviours against honour and reputation.

In addition, there is another regulation in the relevant law. For example, the employer’s behaviours such as provocation, taunting, encouragement to commit a crime or committing a crime against the employee or his/her family have the same consequences. The employer’s making unfounded and serious allegations or accusations against the employee, which are offensive to honour and dignity, also gives the employee the right to terminate for just cause.

D-) For Wage Reason

One of the essential elements of the employment contract between the employer and the employee is the wage. The wage to be calculated and paid must comply with the provisions of the law and the terms of the contract.

According to the decisions of the Court of Cassation, not only the main wage of the employee, but also other labour receivables such as annual leave pay, overtime pay, public holiday and week holiday pay may constitute justified reasons for termination. In addition, underpayment of the employee’s SSI premiums also gives rise to the right of justified termination due to non-compliance with the rules of morality and good faith.

NOTE: In addition to the non-payment of leave wages, the employer’s failure to allow the employee to use his/her leave rights is also a justified reason for termination. This right is a right guaranteed by the Constitution. In other words, the employee cannot give up using this right even with his/her own consent. The employee is obliged to prove that this right is violated.

Another situation where the employer violates its legal obligations is to pay the employee by hand. Paying the employee by hand may lead to consequences such as incomplete processing of the employee’s SSI premium, delayed retirement or inability to receive unemployment benefits. If the payment of wages by hand is a certain continuity and this situation is not corrected by the employer even though the employee objects, the employee’s right to justified termination arises.

Article 24/2-f of the Labour Law regulates the wages paid by piece or by the amount of work. Accordingly; in cases where the employer assigns less work to the employee than the number and amount of work that the employee can do, if the wage difference is not compensated by paying the wage difference on a time basis, or if the working conditions are not applied, the employee may terminate the contract for just cause.

3. Employee’s Right to Terminate with Just Cause due to Compelling Reasons

According to the relevant article of the law, the emergence of compelling reasons that require the work to stop for more than one week in the workplace where the employee works is a justified reason for termination for the employee.

Justified Termination of the Employee Due to Mobbing

Although it is not included in the article of the Law, mobbing (psychological harassment) is also one of the reasons for justified termination of the employee, as can be understood from the Regulation and the decisions of the Court of Cassation.

Firstly, what is mobbing? According to the definition in the relevant Regulation; mobbing is the whole of malicious, intentional, negative attitudes and behaviours that aim to systematically intimidate or dismiss one or more persons in the workplace by one or more persons against other person or persons, damaging their personality values, professional status, social relations or health.

Mobbing must be committed by the employer or another employee. Since the employer is under the obligation of supervision towards the employee, even if another employee commits mobbing, the employer can be held responsible and justified termination can be made.

The Court of Cassation does not require 100% proof for mobbing, but the behaviour in question must be continuous. There is no time limit in the law for justified termination due to mobbing and the burden of proof that the employee has been mobbed is on the employee.

What Can the Employee Demand as a Result of Termination for Just Cause? What is the Duration of the Request After Justified Termination?

As a result of justified termination, the employment contract between the employee and the employer can be terminated directly, regardless of whether it is fixed-term or indefinite-term. One of the most important consequences of this termination is that the employee is entitled to severance pay, which he/she would not normally be entitled to in case of unilateral termination.

For severance pay , the employee must have worked for 1 year continuously for the same employer based on a valid employment contract. In addition to this general condition, the employee is entitled to severance pay if he/she terminates the contract based on the conditions specified in Article 24 of the Labour Law.

Notice pay is a type of compensation that must be paid by the party who does not comply with this notice period in cases of termination by complying with the notice period. Termination for just cause is a termination that allows to terminate the employment contract directly by eliminating the notice period. For this reason, there will be no notice pay in case of termination for just cause, but there are exceptions to this situation in the decisions of the Court of Cassation.

In terms of other labour receivables, the employee will be entitled to compensation for these receivables in the same way. What is meant by these receivables are receivables such as annual leave pay, week holiday pay, overtime pay, public holiday pay. In addition, the employee will also be able to claim the wages for the unused leave.

If the employee has made a justified termination due to situations that do not comply with the rules of morality and goodwill, he/she is subject to a 6-day grace period in order to use this termination authority. The 6-day period starts from the day the person learns that these contrary behaviours have occurred and ends 1 year after the behaviour has occurred.

In case of justified termination due to health reasons or compelling reasons, no time requirement is foreseen.

The lawsuits arising from these receivables are subject to mediation according to the Labour Courts Law No. 7036. Filing a lawsuit without applying to the mediator requires procedural dismissal due to the absence of a lawsuit condition. The application to the mediator should be made to the Mediation Office in the settlement of the other party or in the place where the work is carried out.

Termination of the Employment Contract by the Employer for Just Cause

In the Labour Law No. 4857, the reasons for termination of the employer for just cause are discussed under 4 main headings: health problems, failure to comply with the rules of morality and good faith, compelling reasons and detention or arrest of the employee. We will examine these headings in detail.

1. Termination of the Employer for Just Cause Due to Health Reasons

According to the article in the Law, the employer’s right of justified termination due to health reasons is foreseen in 3 different ways.

a) In the event that the worker becomes ill or disabled due to a disease or disability arising from his/her own intention or disorderly living or indulgence in alcohol, the absence arising from this reason lasts for more than three consecutive working days or more than five working days in a month,

b) It is determined by the Health Board that the disease of the worker is incurable and that it is inconvenient for him/her to work at the workplace,

c) In addition to these two articles and the reasons listed in subparagraph (a), the employer has the right to terminate the employment contract without notice in cases such as illness, accident, birth and pregnancy.

In order for the employer to be entitled to terminate the employment contract without notice in case of illness and accident, the periods specified in Article 17 of the Labour Law, which will be calculated according to the working period of the employee, must exceed 6 weeks. In other words, the illness and accident in question must last 6 weeks longer than the notice period in the case of termination with notice. Upon the completion of this period, the employer will be able to use the right of termination for just cause. Let us briefly summarise the periods.

• For an employee whose employment has lasted less than six months, two weeks from the date of notification to the other party
• For an employee whose employment has lasted from six months to one and a half years, four weeks from the date of notification to the other party
• For an employee whose employment has lasted from one and a half years to three years, six weeks from the date of notification to the other party
• For an employee whose employment has lasted more than three years, eight weeks from the date of notification

In cases of childbirth and pregnancy, the additional 6 weeks to the notice period starts from the end of the maternity leave specified in Article 74 of the Labour Law. According to the relevant article;

• It is essential that female workers are not employed for a total period of 16 weeks, 8 weeks before and 8 weeks after the birth.
• In case of multiple pregnancies, two weeks are added to the eight-week period before the birth.
• In case the female employee gives birth prematurely, the periods that cannot be used before the birth shall be used by adding to the postnatal periods.
• In case of adoption of a child under the age of three, one of the spouses or the adopter shall be granted 8 weeks of maternity leave from the date the child is actually delivered to the family.

In addition to these articles, it is useful to read Article 74 of the Labour Law in detail.

2. Employer’s Right of Justified Termination on the Grounds of Cases Incompatible with the Rules of Morality and Good Faith and Similar Reasons

In order to analyse this article in detail, we need to list them.

• Providing false or misleading information about the employee about one of the essential points of this contract during the conclusion of the employment contract.
• The employee uttering words or behaving in such a way as to damage the honour and reputation of the employer or one of their family members.
• Making unfounded denunciations and allegations about the employer that are offensive to his/her honour and dignity.
• The employee sexually harassing another employee of the employer. The employer is required to take direct measures in this regard.
• The employee taunts the employer, one of his/her family members or another employee of the employer.
• The employee comes to the workplace drunk or on drugs or uses these substances in the workplace.
• The employee abuses the trust of the employer.
• The employee commits theft.
• The employee’s behaviour incompatible with honesty and loyalty, such as revealing the employer’s professional secrets.
• The employee commits an offence at the workplace that is punishable by imprisonment for more than seven days and for which the penalty is not postponed.
• The employee is absent from work for two consecutive working days or twice in one month on the working day following any holiday without permission from the employer or without a justifiable reason.
• The employee does not attend work for three working days in a month.
• The employee insists on not performing the duties that he/she is obliged to perform even though he/she is reminded of them. The Court of Cassation seeks concrete evidence in this regard.
• Endangering the safety of the work due to the worker’s own will or negligence
• If the employee damages or loses the machines, installations or other goods and materials which are the property of the workplace or which are not the property of the workplace due to his/her own will or negligence to such an extent that he/she cannot pay the amount of his/her thirty days’ wage.

If the above conditions are met, the employer may terminate the contract immediately by exercising the right to terminate for just cause. Let’s give some examples that meet these conditions.

• During the job interview, the employee tells the employer that he/she knows a foreign language even though he/she does not.
• The employee says that he/she has knowledge about a profession that he/she does not know (For example, he/she is a technician and says that he/she is an architect).
• When the employee calls the employer ‘stingy, miserly’.
• The worker forcibly tries to hold the hand of another worker, sends him/her immoral messages, calls him/her repeatedly.
• The worker assaulting and beating another worker.
• The worker takes compassionate leave by showing a false reason (For example, saying that his/her mother is sick but going on holiday to Cuba).
• The worker steals the money of another worker.
• The worker taking bribes from the customer.
• The employee doing the work of another place other than the work assigned to him during working hours, etc.

3. Employer’s Right to Termination for Just Cause due to Compelling Reasons

In the event of a compelling reason that prevents the employee from working at the workplace for more than one week, the employer may terminate the contract immediately by exercising the right to terminate for just cause.

4. Termination of the Employer for Just Cause Due to Detention or Arrest of the Employee

According to Article 25/4 of the Labour Law, certain periods are stipulated for the employer to exercise the right of justified termination due to the detention or arrest of the employee. These periods are the notice periods in Article 17 of the Labour Law, which we have already explained above. Let’s summarise again.

As a result of the detention or arrest of the employee, the employer’s right of termination for just cause arises if the person has worked for less than 6 months for 2 weeks, between 6 months and one and a half years for 4 weeks, between one and a half and 3 years for 6 weeks, and more than 3 years for 8 weeks.

What is the Duration of the Employer’s Right to Terminate for Just Cause?

If the employer has made a justified termination due to situations that do not comply with the rules of morality and goodwill, it is subject to a 6-day grace period in order to use this termination authority. The 6-day period starts from the day the person learns that these contrary behaviours have occurred and ends 1 year after the behaviour has occurred.

In the case of justified termination due to health reasons, compelling reasons and detention or arrest, no time requirement is stipulated.

Consequences of the Employer’s Termination of the Contract for Just Cause

Regardless of the type of termination, as a result of the unilateral termination of the employer, the employee is entitled to severance pay if he has completed at least one year of seniority. This situation is valid even in the termination of the employer for just cause. However, there is an exception.

If the termination is justified due to situations that do not comply with the rules of morality and good faith and the like, as stated in Article 25/2 of the Labour Law, the employee will not be entitled to severance pay.

Apart from this, the employee will be able to claim his/her receivables such as annual leave pay, week holiday pay, overtime pay.

What can the employee do if the employer terminates the contract for just cause?

The burden of proof that the termination is based on a valid reason belongs to the employer. If the employee claims that the reasons shown by the employer in the justified termination are not appropriate, he / she may apply to the judicial remedy.

The employee whose employment contract has been terminated must apply to the mediator in accordance with the provisions of the Labour Courts Law, with the claim that the reason is not shown in the termination notice or the reason shown is not a valid reason, within one month from the date of notification of the termination notice. In this case, if the employee claims that the termination is based on another reason, he/she is obliged to prove this claim.

If no agreement is reached at the end of the mediation activity, a lawsuit can be filed at the labour court within two weeks from the date of the final report. In case a lawsuit is filed directly without applying to the mediator, the lawsuit shall be dismissed procedurally. The finalised rejection decision can be applied to the mediator within two weeks from the official notification.

Invalidity of the Employer’s Termination of the Contract

If the court or a special arbitrator decides that the termination is invalid because the employer has not shown a valid reason or the reason shown is not valid, the employer must reinstate the employee within one month.

The employee must apply to the employer to start work within 10 working days following the notification of the finalised court or special arbitrator decision. If the employee does not apply within this period, the termination made by the employer shall be deemed a valid termination and the employer shall be liable only for the legal consequences thereof.

If the employer does not reinstate the employee within one month upon the employee’s application, the employer shall be obliged to pay compensation to the employee in the amount of at least four months‘ and at most eight months’ wages.

When the court or special arbitrator decides that the termination is invalid, it also determines the amount of compensation to be paid if the employee is not reinstated.

For the period of inactivity until the finalisation of the decision, the worker shall be paid his/her wages and other rights up to a maximum of four months.

If the worker is reinstated, the wage and severance pay for the notice period paid in advance shall be deducted from the above payment amount. If the employee who is not reinstated is not given a notice period or the wage for the notice period is not paid in advance, the wage amount for these periods shall be paid separately.

Difference Between Termination for Just Cause and Termination for Valid Reason

Termination for just cause is a type of termination regulated only for the employer in Article 18 of the Labour Law No. 4857. The employee cannot terminate the contract based on these reasons. Termination for just cause is a type of termination that is regulated separately for both the employer and the employee. It is regulated under Article 25 of the Labour Law for the employer and Article 24 of the Labour Law for the employee.

The conditions of termination for just cause are more severe than the conditions of termination for valid cause. In termination for just cause, it is almost impossible to continue working. In case of termination for just cause, it is not necessary for the continuation of work to become impossible. It is sufficient to have a valid reason arising from the employee’s competence or behaviour or the requirements of the enterprise, workplace or business.

In order to terminate for valid reason, the employer must terminate the indefinite-term employment contract of the employee who has at least six months of seniority in the workplace employing thirty or more employees. In the termination for just cause, conditions such as the fixed or indefinite term of the contract, the seniority of the employee, and the number of employees are not important.

In just cause termination, the employer or the employee can terminate the contract immediately. In termination for just cause, the employer is obliged to terminate the contract by complying with the notification (notice) periods.

For termination for valid reason, the employee must have job security. In termination for just cause, it is not important whether the employee has job security or not.

Why Us?

Wrongful termination can lead to serious material and moral losses for employees if the employer unilaterally terminates the employment contract unlawfully. At this point, it is of great importance to get support from an expert legal team in order to protect your rights and fight against termination by legal means.

As Güneş & Güneş Law Office, we offer professional legal consultancy to our clients with our deep experience and extensive knowledge in the field of labour law. We work meticulously to ensure that our clients achieve the best result by effectively defending their rights in unfair termination claims. We are at your side with our mission to provide our clients with a reliable and effective solution by minimising the complexity of legal processes.

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