Period for Exercising the Rightful Immediate Termination in Turkish Labor Law

In terms of the employee and the employer, it is aimed by the legislator to prevent the parties to the employment relationship from losing their rights by attributing the unilateral termination of the employment relationship to various reasons and consequences. Basically, when interpreted in terms of the Labor Law No. 4857 ("Labor Law"), it can be said that the right of termination of the parties to the employment contract comes to the fore as soon as the employment contract is made unbearable for the parties.

A. Right To Break The Employment Contract Of Parties

Article 24 and 25 of the Labor Law regulates the right of the employee and the employer to terminate immediately for just cause. Accordingly, if the conditions listed are met, definite term or indefinite term employment contracts can be terminated before the expiry of the term of the employment contract or without waiting for the notice period. Within the scope of the Labor Law, these situations are examined under the headings of health reasons for both parties, situations that do not comply with the rules of morality and good faith and the like and compelling reasons. On the other hand, it should be noted that, in addition to all these regulations in terms of immoral, dishonourable or malicious behaviour of the other party, the legislator has stipulated a period of prescription for the right to break the employment contract for just cause. As a matter of fact Article 26 of the Labor Law,

"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. The "one year" statutory limitation shâll not be applicable, however, if the employee has extracted material gains from the act concerned."

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B. Scope of Situations With Immoral, Dishonourable or Malicious Behaviour

As explained above, the issue to be considered when exercising the right of immediate termination is the grounds on which the termination is based. As a matter of fact, although the legislator has regulated the reasons on which the right of immediate termination for just cause may be based in Articles 24 and 25 of the Labor Law, it is seen that the title of "immoral, dishonourable or malicious conduct or other similar behaviour" is subject to a separate regulation in Article 26 of the same.

Thus, as will be explained below, it is quite obvious that in order to exercise the right of immediate termination for just cause in case of non-compliance with the rules of morality and good faith, the condition stipulated in terms of time must be met, otherwise it will not have any effect and result. For example, on the part of the employee, many reasons such as the employee harassing another employee of the employer, the employee coming to the workplace drunk or taking drugs or using them in the workplace, abusing the good faith of the employer, revealing the employer's professional secrets, not performing the duties that he is obliged to do even though he is reminded of them, can be counted within the scope of situations that do not comply with the rules of morality and good faith. Similarly, on the employer's side, harassment of the employee by the employer, harassment of the employee by other workers or someone else in the workplace and failure to take the necessary measures despite reporting this to the employer, the employer saying words or behaving in a way that touches the honour of the employee or one of his family members, the employer's failure to calculate and pay the employee's wages in accordance with the provisions of the law or the terms of the contract can be given as examples.

In conclusion, it should be reiterated that the six day and, in any case, one year limitation period regulated in Article 26 is for the regulation of immoral, dishonourable or malicious conduct or other similar behaviour. Thus, in termination requests arising from health reasons, compelling reasons and other circumstances regulated for both parties in Articles 24 and 25 of the Labor Law, the period of prescription stipulated in Article 26 is not required.

C. Termination Period in Terms Of Supreme Court Decisions

Article 26 of the Labor Law restricts the period for exercising the right of immediate termination to the date of the act and the date of learning of the act. To reiterate, the period of prescription is six working days from the date the act is learnt and in any case one year from the date of the act. The period of six working days starts when the employee or the employer learns of the event, and the one year period starts when the event subject to termination occurs. If even one of these two periods of forfeiture specified under the Labor Law is not complied with, the termination made in this case will not have the consequences of immediate termination for just cause. In cases where the event in question is revealed by an inspector or auditor, the starting date of the statute of limitation should be determined as the date the person or persons learnt about the situation. As a matter of fact, the decision of the 9th Civil Chamber of Supreme Court with File No. 2021/7658 and Decision No. 2021/15262,

"In case the employer is a legal entity, the six-working day period starts from the day the authority authorised for termination learns about the termination. An inspector's investigation on this matter, the discussion of the incident by the disciplinary board does not start the period. The day the incident is transferred to the person or board authorised for termination constitutes the beginning of the six-working day period. In any case, the one-year period starts from the day the incident occurs."

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"Namely, it is understood that the shift supervisor ..., who was aware of the incident on the day the plaintiff committed the action in question, was not the competent authority for termination, the defendant employer imposed a penalty of 3 daily wage deductions on this employee due to his negligence in the occurrence and after the incident, and also penalised ... and ..., who were eyewitnesses of the incident, with a warning penalty for not making an effort to prevent the incident despite being eyewitnesses and not informing their superiors. Considering the fact that the defendant employer took punitive action against the employees who did not report the incident to him, it is necessary to accept that the plaintiff terminated the employment contract within the six-day legal period according to the date of learning the incident as claimed by the defendant."

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As explained above, the period of six working days starts when the employee or the employer learns of the event giving rise to the justified termination, but the day of learning of the event is not included in the calculation of the period. As can be understood from the term "working day" of the legislator, week holidays, national holidays and general holidays should not be taken into account when calculating the days in this period. However, if work is carried out on Saturdays, Sundays or general holidays, these days should also be included in the counting of working days. As a matter of fact, the 9th Civil Chamber of Supreme Court with File No. 2016/6122 and Decision No. 2019/15301,

"The party who uses the right of termination without notice after the expiry of the periods specified in this article will be deemed to have unjustly broken the contract and will be liable for notice pay and severance pay if the conditions are met."

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It should be noted that it will be sufficient for the parties to declare their intention to terminate within six business days, i.e. to express their intention. In other words, the termination will should not be required to have reached the addressee within the period determined as six working days. Likewise, the 9th Civil Chamber of Supreme Court with File No. 2016/6122 and Decision No. 2019/15301,

"Although the non-payment of the employee's wages is a continuous situation, the right of termination can be used until the payment is made. Otherwise, the reason stipulated in Article 24/III-e of the Law will have disappeared. It is sufficient to declare the termination will within six working days, and it is not necessary that the notification has reached the addressee within this period."

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It should be noted that if the employee has a material interest in the event subject to termination, the time elapsed since the event will not have any consequences in terms of the period of prescription, without prejudice to the period determined as 6 working days for the justified termination of the employer. In other words, the employer will have the right to use the right of justified termination at any time, no matter how much time has elapsed since the event, if the employee has obtained a material benefit from the event subject to termination. As a matter of fact, in the decision of the 9th Civil Chamber of Supreme Court with File No. 2021/7658 and Decision No. 2021/15262,

"In the Labor Law No. 4857, it is stipulated that the one-year period will not run if the employee has a material benefit. Therefore, if the employee has a material interest in the event that caused the justified termination, the employer has the right of justified termination no matter how much time has passed since the event, provided that the six working days are observed."

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D. Conclusion

As a result, as revealed by the Labor Law and the decisions of the Court of Cassation, it has been explained that in the event of situations that do not comply with the rules of morality and good faith, the parties must exercise their right of termination within six working days after the event is learned and in any case within one year from the occurrence of the event, otherwise a valid termination cannot be mentioned. It is extremely important to pay attention to these periods of priscription, to examine the relationship between the occurrence of the event subject to termination and the interlocutors' learning of this event, and it directly affects the provisions and consequences of immediate termination for just cause.

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