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10 May 2022

Terminating Employment Contract Due to Lack of Performance

Written by Erdoğdu Onur Erol, Posted in Work Life

Terminating Employment Contract Due to Lack of Performance

Per Turkish Labor Law No. 4857 ("Law"), it is stated that the termination of the indefinite period employment contracts should be based on a valid reason. Some preconditions would need to be met by the employers to terminate an indefinite period contract of an employee due to the lack of performance.

Otherwise, as a result of reemployment lawsuits, the termination could be deemed invalid and the employee could be reemployed.

You can find the details of Article 18 on Turkish Labor Law No. 4857

Justification of Termination With a Valid Reason

"Article 18 - The employer, who terminates the contract of an employee engaged for an indefinite period, who is employed in an establishment with thirty or more workers and who meets minimum seniority of six months, must depend on a valid reason for such termination connected with the capacity or conduct of the employee or based on the operational requirements of the establishment or service.

In the computation of the six-month seniority, periods enumerated in Article 66 shall be considered.

The following, inter alia, shall not constitute a valid reason for termination:

  • Union membership or participation in union activities outside working hours or, with the consent of the employer, within working hours.
  • Acting or having acted in the capacity of, or seeking office as, a union representative.
  • The filing of a complaint or participation in proceedings against an employer involving alleged violations of laws or regulations or recourse to competent administrative or judicial authorities.
  • Race, color, gender, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction, or social origin.
  • Absence from work during maternity leave when female workers must not be engaged in work, as foreseen in Article 74;
  • Temporary absence from work during the waiting period due to illness or accident foreseen in Article 25 of the Labor Act, subsection I (b).

The "six-month" minimum seniority (length of service) of the employee shall be calculated based on the sum of their employment periods in one or different establishments of the same employer. In the event the employer has more than one establishment in the same branch of activity, the number of employees shall be determined based on the total number of employees in these establishments.

This Article and Articles 19 and 21 and the last subsection of Article 25 shall not be applicable to the employer's representative and their assistants authorized to manage the entire enterprise as well as the employers' representative managing the whole establishment but who is also authorized to recruit and to terminate employees."

The valid reasons stated in Article 25 quire termination notice period and do not reach the level of just cause listed in Article 18. The employer may terminate the employment contract with the notice periods and pay the employee's severance pay and other allowances. However, in the event of a termination per Article 25 of the Turkish Labor Law, the employer can terminate the employment contract immediately without any notice period and without paying the employee's severance pay.

In practice, valid reason and just cause are confused from time to time. Per the concrete case, if a certain behavior of the employee "cannot be expected to be important and reasonable for the employer to continue the employment relationship", it can be deemed as a valid reason. If there is a violation of the rules of morality and goodwill listed in Article 25 of the Turkish Labor Law, the employer can terminate with a rightful termination immediately. Per the characteristics of each event, it should be noted that the principle of proportionality between the behavior of the employee and the type of termination applied by the employer is an important criterion in the decision-making process.

What is the Procedure of the Contract Termination?

Per Article 19, the terminations should be made in writing and the reasons should be explained clearly.

In addition, the defense of the employee must be obtained as well.

Article 19 is as below:

ARTICLE 19 - The employer shall give the notice of termination in the written form involving the reason for termination, which must be specified in clear and precise terms.

The employment of an employee engaged under a contract with an open-ended term shall not be terminated for reasons related to the worker's conduct or performance before he is provided an opportunity to defend themselves against the allegations made. The employer's right to break the employment contract under Article 25/II of the Labor Act (for serious misconduct or malicious or immoral behavior of the employee) is, however, reserved.

What are the Preconditions to be Met for a Termination Due to Lack of Performance?

The preconditions are summarized in a decision of the Supreme Court (decision dated 18.03.2008 of the 9th Civil Chamber of the Court, Article no. 2007/27584, Decision no. 2008/5327) as below:

"Objective criteria would need to be determined to consider the performance and productivity result as a valid reason. Performance and productivity standards should be specific to the workplace. Objectivity criterion should be applied in such a way that the same rules should be applied for the employees who do the same job in that workplace. Performance and efficiency standards should be realistic and reasonable. There must be consistently low or downward trending performance and efficiency results for a valid reason. Results that vary depending on the conditions and are inconsistency would not be considered as a valid reason. In addition, failure to achieve the performance increase targets would not be a valid reason alone. If the employee's capacity is sufficient for the performance targets, but the employee does not show the required effort for these targets, there may be a valid reason.

"Performance evaluation criteria should be determined and communicated to the employee in advance to be objective in the performance evaluation process. And, knowledge, skills and experience required for the positions, behaviors suitable for the workplace, and work and personal development goals expected from the employee should be based on these criteria.

In other words, the quality of the employee, behaviors and the goals would be important. These criteria should be put forward objectively in accordance with the job description of the employee, the employer's corporate principles and the workplace rules to be followed. The performance evaluation forms should be prepared based on these objective rules and a Performance Evaluation System should be developed and implemented in the workplace.(The same statements are also included in the decision Article no 2007/13994, Decision no 2007/27720):

"If the employment contract is terminated due to poor performance and productivity within the probationary period (which must be at least six months), this cannot be accepted as a valid reason. In other words, the working standards, and professional characteristics of the employee during this period are considered as the criteria / limits for the future period. However, if these performance limits are dropped and if it persists, a valid reason may arise. If the employer expects a performance above these limits, the employer should also prove that it provides performance-developing opportunities such as training and improving working conditions to confirm this expectation.

The below statements are included in the Supreme Court decision dated 22.02.2016 with Article no: 2015/26541 and Decision no: 2016/3504:

Firstly, the performance of the employees should be evaluated, and if low performance is detected, the reasons and consequences of this low performance should be analyzed and a portion of time should be given to the employee to fix it. Otherwise, direct dismissal alone would not justify the termination.

In the light of the above, we can summarize the criteria below:

1- A performance evaluation system should be established, and the criteria should be objective, workplace-specific, realistic and reasonable.

2- Performance evaluation criteria should be determined in advance, communicated to the employee, and the knowledge, skills and experience required by the job, behaviors suitable for the workplace, and work and personal development goals expected from the employee should be based on these criteria.

3- A reasonable time should be given to the employee (at least 6 months) to correct and reanalyze own performance.

4- Periodically performance interviews should be organized by the employer if an issue about the performance begins to arise regarding the performance of an employee to keep records about this situation. At least 3 performance interviews would be required.

5- A written defense statement about the lack of performance would need to be requested from the employee. If a written defense statement is not received, the termination might be deemed as invalid (Supreme Court Decision dated 27.04.2005, Article no 2005/10261, Decision no 2005/14718)

6-) Following this, the employer is obliged to provide any opportunity to improve an employee's performance such as additional training. (Supreme Court decision dated 20.04.2016, Article no 2015/41444, Decision no 2016/8802).

Based on the above-mentioned facts and the sensitivity of the process, it is recommended to apply mediation for the termination cases due to the lack of performance.

You can review the details about the mediation process by clicking the link.

You can reach the Labor Law no: 4857 via the link.

Should you have any queries or need further details, please contact your customer representative.

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Contents provided in this article serve to informative purpose only. The article is confidential and property of CottGroup® and all of its affiliated legal entities. Quoting any of the contents without credit being given to the source is strictly prohibited. Regardless of having all the precautions and importance put in the preparation of this article, CottGroup® and its member companies cannot be held liable of the application or interpretation of the information provided. It is strictly advised to consult a professional for the application of the above-mentioned subject.

Please consult your client representative if you are a customer of CottGroup® or consult a relevant party or an expert prior to taking any action in regards to the above content.

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Online Visitor Clarification Text On The Processing Personal Data

Data Controller: Boss Yönetişim Hizmetleri A.Ş.

Address: Astoria Towers Büyükdere Cad. No: 127 B Kule Kat: 8 34394 Şişli, İstanbul, Türkiye

Boss Yönetişim Hizmetleri A.Ş. ("Company") prepared this Clarification Text as the data controller to inform you, our valuable online visitors, about your personal data that we process in accordance with the Law on the Protection of Personal Data (hereinafter referred to as "KVKK") and the relevant legislation.

1. Your Personal Data Processed and The Scope of The Processing

Personal data is any data that identifies you or makes you identifiable. For example, your name, surname, eye color, phone number or bank account information are considered personal data. On the other hand, processing your personal data refers to all kinds of processes such as obtaining, amending, registering, storing, retaining, deleting, disclosing, and transferring your data. We have provided the following information about the personal data we process:

ID Data

Your Processed ID Data Purposes of Processing
Your ID Data
Collection Methods of
Your ID Data
Legal Reasons Behind Our Data Processing Activities
  • Name
  • Surname
  • Execution of Customer Relationship Management Processes
  • Conducting Activities for Customer Satisfaction
  • Execution of Goods/Service Sales Processes
  • Online Electronic Forms
  • Contact Forms
  • It is required to process your personal data as a party to the contract, provided that it is directly related to the establishment or performance of a contract.
  • It is mandatory to process data for the legitimate interests of the data controller, provided that it does not harm your fundamental rights and freedoms as a data subject.

Contact Data

Your Processed Contact Data Purposes of Processing Your Contact Data Collection Methods of Your Contact Data Legal Reasons Behind Our Data Processing Activities
  • Your contact data about your work (e-mail, address, phone number)
  • E-Mail Address
  • Address Information
  • Execution of Customer Relationship Management Processes
  • Conducting Activities for Customer Satisfaction
  • Conducting Communication Activities
  • Online Electronic Forms
  • Contact Forms
  • It is required to process your personal data as a party to the contract, provided that it is directly related to the establishment or performance of a contract.
  • It is mandatory to process data for the legitimate interests of the data controller, provided that it does not harm your fundamental rights and freedoms as a data subject.

Personnel Data

Your Processed Contact Data Purposes of Processing Your Contact Data Collection Methods of Your Contact Data Legal Reason of Our Data Processing Activities
  • Company name
  • Sector
  • Execution of Customer Relationship Management Processes
  • Execution of Sales Processes for Goods / Services
  • Conducting Activities for Customer Satisfaction
  • Conducting communication activities
  • Online Electronic Forms
  • Contact Forms
  • It is required to process your personal data as a party to the contract, provided that it is directly related to the establishment or performance of a contract.
  • It is mandatory to process data for the legitimate interests of the data controller, provided that it does not harm your fundamental rights and freedoms as a data subject.

Customer Transaction Information

Your Processed Customer Transaction Information Purposes of Processing Your Customer Transaction Information Collection Methods of Your Customer Transaction Information Legal Reasons Behind Our Data Processing Activities
  • Request/Complaint Information
  • Execution of Customer Relationship Management Processes
  • Online Electronic Forms
  • Online Contact Forms
  • It is required to process your personal data as a party to the contract, provided that it is directly related to the establishment or performance of a contract.
  • It is mandatory to process data for the legitimate interests of the data controller, provided that it does not harm your fundamental rights and freedoms as a data subject.

Transaction Security Information

Your Processed Transaction Security Information Purposes of Processing Your Transaction Security Information Collection Methods of Your Transaction Security Information Legal Reasons Behind Our Data Processing Activities
  • IP Address
  • Request Time and Date
  • Time zone Difference from Greenwich-mean-time (GMT)
  • Access Status/http Status Code
  • Amount of Data Transferred
  • Website to Which the Request Was Sent
  • Browser Information
  • Operating System and User Interface
  • Language and Version of the Scanner Software
  • Approximate Location Information
  • Execution of Customer Relationship Management Processes
  • Conducting Activities for Customer Satisfaction
  • Conducting Marketing Analysis Studies
  • Execution of Information Security Processes
  • Conducting Activities in Compliance with Legislation
  • Online Electronic Forms
  • Online Contact Forms
  • It is required to process your personal data as a party to the contract, provided that it is directly related to the establishment or performance of a contract.
  • It is mandatory to process data for the legitimate interests of the data controller, provided that it does not harm your fundamental rights and freedoms as a data subject.

2. Our Retention Period for Storing Your Personal Data

We store your personal data for a period of time stipulated in the relevant legislation or for the periods of time required by the processing purposes. We will delete, destruct or anonymize your data by ex officio or upon your request, if legal reasons requiring data processing disappear.

3. Your Rights Regarding Your Personal Data

Data subject refers to the natural persons whose personal data are processed. As a data subject, you, our valuable online Visitors, have the following rights regarding your personal data processed under KVKK:

  • To learn whether your personal data are being processed,
  • To request information if your personal data are processed,
  • To learn the purpose of processing your personal data and whether this data are used for the intended purposes,
  • To know the third parties to whom this personal data is transferred domestically or abroad,
  • To request the rectification of the incomplete or inaccurate data, if there are any,
  • To request the deletion or destruction of this personal data under the conditions set forth in KVKK,
  • To request notification to the third parties that the personal data have been transferred to about the rectification of incomplete or inaccurate data and the deletion or destruction of personal data upon your request,
  • To object to the issues that have arisen due to the analysis of your data exclusively through automated systems and are to the detriment of you,
  • To request compensation for the damage arising from the unlawful processing personal data.

4. Methods To Follow to Exercise Your Rights

You can share your application and requests regarding your personal data with Boss Yönetişim Hizmetleri A.Ş. via Data Subject Application Form,

  • By sending it with your wet signature and a copy of your identity card to Astoria Towers Büyükdere Cad. No: 127 B Kule Kat: 8 34394 Şişli, İstanbul, Türkiye,
  • By sending an e-mail to This email address is being protected from spambots. You need JavaScript enabled to view it.,
  • By applying in person with a valid identity document to Astoria Towers Büyükdere Cad. No: 127 B Kule Kat: 8 34394 Şişli, İstanbul, Türkiye

You, as a data subject, should include your name and surname, your signature if the application is in written form, your Turkish ID Number if you are a Turkish citizen, your nationality and passport number (or if you have an ID number) if you are foreigner, place of residence or business address for notifications, your e-mail address and fax number if you have one, and lastly, the subject of the request in your application with respect to legal requirements regarding the applications to data controllers. In addition, you should add documents and information confirming your identity to your application.

In order for us to operate the process in the most effective way for you, you should clearly and understandably indicate in your request which right you want to use and the details of the transaction you request.

We would like to emphasize that the request should concern the data subject itself. If the application is made on behalf of someone else, the person making the request should rely on a specially documented authorization for the requested transaction (power of attorney). Unauthorized applications will not be evaluated.

5. Evaluation of Your Application

By evaluating your applications, we respond to you as soon as possible and within 30 days of receipt as of the date of your application.

 

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