Termination Two Days Before the Six-Month Seniority Requirement: A Constitutional Court Decision

The decision of the Second Section of the Constitutional Court in the application, dated April 8, 2026 and numbered 2022/90210, was published in the Official Gazette dated September 29, 2026 and numbered 33385. The decision concerns a reinstatement case relating to a termination carried out two days before the six-month seniority requirement sought for the application of the job security provisions was met.

The Constitutional Court held unanimously that the right to a reasoned decision, falling within the right to a fair trial guaranteed under Article 36 of the Constitution, had been violated.

Background of the Dispute

The applicant began working for the defendant workplace on March 15, 2021. As a result of contact with family members who had contracted COVID-19, she was placed on sick leave between September 5 and September 18, 2021.

The employer issued the termination notice on September 13, 2021. That date fell two days before the applicant's six-month seniority was completed. The termination notice was served on the applicant on September 18, 2021, being the date on which her sick leave ended.

The applicant brought an action seeking a declaration that the termination was invalid and her reinstatement, arguing that the six-month seniority requirement had been met as of the date on which the termination notice was served on her and that she therefore benefited from the job security provisions. The employer, on the other hand, argued that the employment contract was terminated on 13 September 2021 due to lack of performance and that, as of that date, the six-month seniority requirement had not been met.

The Approach of the First Instance Court

The first instance court declared the termination invalid and ordered the applicant's reinstatement.

The court considered that terminating the employment contract two days before the completion of her seniority, during a period in which she was on sick leave, and without even taking her defence despite the allegation of performance-based termination, constituted conduct contrary to the rule of good faith, carried out with the intention of preventing her from benefiting from the job security provisions.

The court also found the termination invalid in terms of form. Since no evidence had been submitted as to the performance criteria determined by the employer, their notification to the employee, any prior warning, or the preparation of a development plan in respect of the areas found deficient, the court concluded that the alleged underperformance had likewise not been proven.

The Approach of the Regional Court of Appeal

The regional court of appeal upheld the employer's appeal, set aside the first instance decision and dismissed the case as final.

In its reasoning, the chamber stated that in order to benefit from the job security provisions the employee's seniority had to be at least six months as of the date on which the termination notice was given, whereas in the case at hand the seniority amounted to five months and twenty-eight days. According to the chamber, the rule providing for the six-month seniority requirement is mandatory in nature, and the fact that the employer terminated the contract in bad faith does not change that position. In such a case, the employee may only bring a claim in a subsequent action for bad faith compensation.

The Assessment of the Constitutional Court

The Constitutional Court focused not on the merits of the case but on the adequacy of the regional court of appeal's reasoning.

According to the Court, the right to a reasoned decision does not require courts to give a detailed answer to every claim submitted to them. However, where a claim is capable of affecting and altering the outcome of the case, those matters must be answered with reasonable grounds.

Within this framework, two findings were made:

First, the reasoning of the regional court of appeal contains an internal contradiction. On the one hand, the chamber stated that a termination carried out by the employer a few days before the end of the six-month period with the aim of preventing the employee from benefiting from the job security provisions may be rendered invalid for breach of the rule of good faith, and that the six-month period may be shortened or removed entirely by agreement, since the provision is relatively mandatory. On the other hand, in the same decision and contrary to those statements and to the case law of the Court of Cassation, it reached its conclusion on the ground that the rule is mandatory.

Second, the first instance court had accepted that the six-month seniority requirement was met by taking into account the sick leave report and the date on which the termination notice reached the applicant. The regional court of appeal did not provide relevant and sufficient reasons to the contrary. Although the case law of the Court of Cassation emphasises that the six-month period must have been completed as of the date on which the termination notice reaches the employee, no reasoning contrary to that case law was set out.

For these reasons, the Court concluded that claims capable of altering the outcome of the case had not been addressed in the reasoning, and held that the right to a reasoned decision had been violated.

The Limits of the Decision

It is important that the scope of the decision be correctly understood. The Constitutional Court did not decide that the applicant benefits from the job security provisions or that the termination was invalid.

Indeed, the decision expressly states that a finding of a violation is independent of the merits of the dispute and does not mean that the case must be upheld or dismissed. In order to remove the consequences of the violation, the file was sent to the relevant court for a retrial, and the power to assess the evidence and reach a conclusion rests with the courts of instance.

By contrast, the decision may be regarded as establishing that, in terminations carried out shortly before the six-month seniority requirement is met, courts of instance cannot leave unaddressed the claims concerning the rule of good faith and the objections relating to the date of service of the termination notice.

Implications for Employers

Although the decision is procedural in nature, the underlying facts contain points worth noting for employers' termination practices.

1. The dates of issue and service of the termination notice: At the centre of the dispute lies the question whether the date on which the notice was issued or the date on which it was served on the employee is to be taken as the basis in calculating seniority. The case law of the Court of Cassation emphasises that the period must have been completed as of the date on which the termination notice reaches the employee. For this reason, it may be useful to assess separately the time elapsing between the issue and the service of the termination notice in terminations close to the seniority threshold.
2. Terminations close to the seniority threshold: In terminations carried out very shortly before the six-month period is completed, the claim that the employer acted with the aim of preventing the employee from benefiting from the job security provisions may arise. In such cases, it may prove important that the actual reason for and the timing of the termination can be supported by documents.
3. Terminations during sick leave: In the case at hand, the termination coincided with a period in which the employee was on sick leave. This appears to have given rise both to the discussion on the rule of good faith and to the question of taking the employee's defence.
4. Taking the defence and proving the performance allegation: The first instance court treated the failure to take the defence as a ground of formal invalidity and also considered the absence of any document showing that performance criteria had been determined and notified to the employee, that a warning had been given or that a development plan had been prepared as a failure to prove the performance allegation. It may be considered important that this chain of documents be established in advance in performance-based terminations.

Checklist for Companies

• Is the time elapsing between the termination decision and the service of the termination notice monitored, and is that period separately assessed in terminations close to the seniority threshold?
• Has a procedure been determined for cases where a termination notice is issued during a period in which the employee is on sick leave?
• In performance-based terminations, are the determination of performance criteria, their notification to the employee, the warning and the development plan steps recorded in writing?
• Has the process of taking the employee's defence before termination been set out in a written procedure in terms of time limits and formalities?
• Is it established practice to state the reason for termination clearly and precisely in the termination notice?

Conclusion

The decision does not amount to a change of case law bringing the discussion on the six-month seniority requirement to an end. The Constitutional Court's finding concerns the failure of the court of instance to address, with reasons, claims capable of altering the outcome of the case.

Nevertheless, the decision may be said to establish that, in terminations close to the seniority threshold, the discussions concerning the rule of good faith and the date of service of the termination notice must be addressed by the courts of instance with reasons.

You can access the full text of the decision here. (In Turkish)