The employer may terminate the employment contract based on a valid reason. The valid reason for termination is regulated in Article 18 of the Labor Law. According to the article, the indefinite-term employment contract of an employee with at least six months of seniority in workplaces employing thirty or more employees may be terminated based on a valid reason arising from the employee's competence or behavior or the requirements of the enterprise, workplace or business. As can be seen, in order for the employer to terminate the employment contract based on valid reasons, there must be some reasons arising from the employee or the work. Of course, in terms of the reasons related to the work itself, there will be no situation that requires the defense of the employee. However, if the incompetence or behavior of the employee is the reason for the termination of the employment contract, the employer must take the employee's defense. As a matter of fact, Article 19 of the Labor Law regulates this issue by stating that"An employee's indefinite-term employment contract cannot be terminated for reasons related to that employee's behavior or productivity without obtaining his defense against the allegations against him ". However, the employer is obliged to make the notice of termination in writing and to clearly and precisely state the reason for termination.
As can be seen in the established jurisprudence of the Court of Cassation, the termination made without taking the defense of the employee will be invalid. If the termination is invalid, the employee whose employment contract has been terminated may request reinstatement. If a reinstatement lawsuit is filed, the burden of proof that the termination is based on valid reasons will be on the employer.
Procedure for Defense
The Labor Law does not provide a specific provision on how and within what period of time the defense of the employee should be taken. This issue has been expanded by the case law of the Court of Cassation and according to the practice of the 9th Civil Chamber of the Court of Cassation: The defense of the employee must be taken before the termination of the contract. The employee must be invited to submit a defense before the termination, the reason for dismissal due to his/her behavior must be clearly and precisely stated in the invitation letter, he/she must be present at the place, day and time specified a reasonable period of time in advance, and if he/she is not present, he/she must be reminded that he/she may submit a written defense; if he/she is not present at the specified place on the specified day and time and does not submit a written defense despite this, he/she will be deemed to have given up submitting a defense. Requesting a defense with the notice of termination or after termination renders the termination invalid. Likewise, requesting a defense within the notice period also renders the termination invalid.(9th Civil Chamber of the Court of Cassation, 2015/34298 E., 2016/16728)
The period of time within which the employee's defense will be taken is not clearly defined in the decisions of the Court of Cassation, and reasonable time is mentioned. However, what is important here is that the defense is taken before the termination of the employment contract. If the defense is taken from the employee after the notification of the termination of the contract, the termination will be invalid.
Although there is no legal provision stipulating that the defense of the employee shall be taken in writing, the defense must be taken in writing. According to Article 20/2 of the Labor Law, the burden of proving the validity of the reason for termination will be on the employer. Therefore, the employer should take the employee's defense in writing in order to avoid a claim that the termination is invalid in the future.
Circumstances that Do Not Require the Defense of the Employee
Article 19 regulates the taking of the employee's defense as an exception to Article 25, paragraph II of the Labor Law. Accordingly, if the employer wishes to terminate the employment contract for just cause due to the employee's behavior that does not comply with the rules of morality and goodwill, it will not be necessary to take the employee's defense. The cases listed in the law are as follows:
a) The employee misleading the employer by claiming that he has the qualifications or conditions required for one of the essential points of this contract when he does not have them at the time of the conclusion of the employment contract, or by giving information or words that are not in accordance with the truth.
b) The employee utters words or behaves in a manner that may damage the honor and dignity of the employer or one of their family members, or makes unfounded denunciations and allegations against the employer that are offensive to honor and dignity.
c) Sexual harassment of another employee of the employer by the employee.
d) The employee offends the employer or a member of his/her family or another employee of the employer, comes to the workplace intoxicated or on drugs or uses these substances at the workplace.
e) The employee behaves in a manner incompatible with integrity and loyalty, such as abusing the employer's trust, stealing, revealing the employer's professional secrets.
f) The employee commits an offense at the workplace that is punishable by imprisonment for more than seven days and for which the penalty is not suspended.
g) The worker's absence from work for two consecutive working days or twice in a month on the working day following any holiday, or three working days in a month, without permission from the employer or without a justifiable reason.
h) The worker insists on not performing the duties that he/she is obliged to perform even though he/she is reminded of them.
ı) The worker endangers the safety of the work due to his own will or negligence, 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 but which are in his possession, to such an extent that he cannot pay with the amount of his thirty-day wage.
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