Turkey: Decision Of The General Assembly On The Unification Of Judgments Regarding Termination Of Employment Agreement Due To Absenteeism

Last Updated: 6 August 2019
Article by Hande Pat

Most Read Contributor in Turkey, August 2019

Introduction

In the decision of the Court of Cassation General Assembly on the Unification of Judgments ("General Assembly") numbered 2017/9 E. and 2018/10 K. ("Decision")[1], it was decided that in the event an employment contract is terminated for just cause when an employee's illness-related absenteeism exceeds the notification period by six weeks, the employer is not required to obtain the employee's defense.

This decision of the General Assembly has ended the discussion in the doctrine and the practice regarding the obligation of obtaining the employee's defense in the event of termination of the employment for just cause due to health reasons. In this article, firstly, the topic of right of termination of the employment by the employer due to health reasons will be briefly explained, and then the aforementioned decision of the General Assembly and the preamble of the decision will be evaluated.

Right of the Employer to Terminate Employment Agreement due to Health Reasons

Absenteeism of the employee due to health reasons may constitute both a reason for termination of the employment for just cause, and termination of the employment for just cause. These two situations are evaluated, below.

Termination of Employment Agreement for Valid Cause due to Health Reasons

Under Article 18 of Labor Act numbered 4857 ("Labor Act"), "the employer who terminates the employment contract of an employee engaged for an indefinite period, (...), must depend on a valid cause for such termination connected with the capacity or conduct of the employee, or based on the operational requirements of the establishment or service".

Article 19 of the Labor Act ("Article 19") regulates that the employment of an employee who is engaged under a contract for an indefinite term shall not be terminated for reasons related to the worker's conduct or performance before the worker is given an opportunity to defend himself/herself against the allegations made. However, the employer's right to break the employment contract in accordance with Article 25/II of the Labor Act (Article 25/II), which regulates malicious or immoral behavior of the employee, is reserved. In other words, in cases regulated under Article 25/II, obtaining the employee's defense is not required.

In this scope, in the event that the absenteeism of the employee, based on a medical report due to long-lasting illness, exceeds the waiting period under Article 18(3/f) of the Labor Act (exceeds the notifications periods designated under Article 17 of the Labor Law by six weeks), the employer may terminate the employment contract for valid cause.

In addition, even if the total period, as stated in the medical reports obtained by the employee, does not exceed the notification periods under Article 17 of the Labor Act by six weeks, frequent illness is counted as a reason for termination of employment for valid cause under the preamble of Article 18 of the Labor Act. Thus, in the event frequent illness of the employee continuously adversely affects the performance of the employee, the employer may terminate the employment contract for valid cause.

In light of the explicit provision of Article 19 that regulates the obligation of obtaining the defense of the employee when exercising the right to terminate the employment contract for valid cause due to reasons related to capacity or conduct of the employee, the defense of the employee must be obtained in the above-mentioned situations.

Termination of Employment Contract for Just Cause due to Health Reasons

In the event the continuation of the employment contract has become insufferable for the party who requests termination, the right to terminate the employment contract for just cause may be exercised. Reasons for termination of the employment contract are enumerated in the Labor Act numerus clausus. Under the second subparagraph of paragraph (b) of Article 25/1 of the Labor Act, absenteeism of the employee that exceeds the notification period by six weeks is regulated as a reason for termination of the employment contract by the employer for just cause.

The Decision evaluates whether there is an obligation to obtain the defense of the employee if the employment contract is terminated for just cause due to health reasons. In the Decision, opinions in the doctrine related to the topic are examined. The opinions evaluated in the decisions are summarized, below.

Opinions that Support the Defense of the Employee Not Being Required in the Event the Employment Contract is terminated for Just Cause due to Health Reasons

In the Decision, it is stated that according to the prevailing opinion in the doctrine, in the event the employment contract is terminated for just cause due to health reasons, obtaining the defense of the employee is not necessary. The opinion that it is not required to obtain the defense of the employee in such a case is based on the regulation and purpose of the Labor Act.

Firstly, it is argued that it cannot be inferred that the defense of the employee must to be obtained for every reason for termination with just cause, as only Article 25/II is exempted from the obligation of obtaining the employee's defense under Article 19/2. Accordingly, it is not possible to reach the conclusion that the legislator, who does not stipulate an obligation to obtain the defense in the event of employee's conduct against morals and rules of good faith, has aimed to regulate an obligation to obtain a defense in other cases of termination for just cause based on health reasons, force majeure, custody or arrest.

Defenders of this opinion argue that the reason Article 19(2) only refers to Article 25/II is that the referenced Article also regulates termination reasons based on behavior of the employee[2].

Moreover, it is suggested that in the event of absenteeism due to health issues, there is no purpose in obtaining the defense of the employee. According to this opinion, there is no additional information regarding the case that could be retrieved from the defense of the employee. As well, the reason for the absenteeism of the employee can be understood from the medical report. Thus, it is not required to obtain the defense of the employee in consequence of the principle of interpretation according to the purpose of the provision[3].

Lastly, it is asserted that the last paragraph of Article 25 of the Labor Act does not refer to Article 19 which regulates the requirement to obtain the defense of the employee; thus, Article 25 of the Labor Act that regulates the right of termination of the employment contract by the employer for just cause does not regulate the requirement to obtain the defense of the employee[4].

Opinions that Support Obtaining the Defense of the Employee in the Event the Employment Contract is terminated for Just Cause due to Health Reasons

Opinions that support obtaining the defense of the employee in the event the employment contract is terminated for just cause due to health reasons are essentially based on the fact that there is no explicit exemption regulation regarding the right of the employer to terminate the employment contract for just cause for reasons regarding the behavior or performance of the employee, apart from the conditions stipulated under Article 25/II.

The Preamble of the Decision

In the preamble of the Decision, it is underlined that the relation between Article 19 and Article 25 of the Labor Act must be evaluated, as Article 25 of the Labor Act that regulates the right of immediate termination of the employment contract by the employer for just cause does not refer to Article 19, which regulates the procedure of termination.

According to the preamble of the Decision,

  • Article 19 applies to the cases of termination for valid reason that are regulated under Article 18 of the Labor Act. As Article 19 regulates the procedure of periodical termination, this provision cannot be interpreted that the employer is required to obtain the employee's defense in any kind of termination. As Article 19 is clearly excluded in the last paragraph of Article 25 of the Labor Act, it is a moot point to mention any obligation to obtain the defense of the employee in terminations for just cause.
  • The reason why only Article 25/II is exempted in Article 19 is that both of these provisions regulate reasons for termination of the employment contract due to behavior of the employee.
  • The purpose of obtaining the defense of the employee before termination is to notify the employee of the termination reasons so that the employee may affect the employer's will to terminate. However, in the case of absenteeism of the employee, requesting the defense of the employee is of no importance, neither for the employee, nor for the employer. Absenteeism of the employee that exceeds the notification period by six weeks, is a factual situation, and obtaining the defense of the employee has no purpose. Arguing that there is an obligation to obtain the defense of the employee would serve no purpose under the law.
  • Medical conditions that lead to immediate termination of the employment contract for just cause should not be evaluated as one of the reasons regarding the conduct or performance of the employee as stipulated under Article 19. Medical conditions that lead to immediate termination of the employment contract express the "inability" of the employee, and an evaluation regarding the performance of the employee shall not be in question in that case.
  • Under Article 7 of the Convention numbered 158 of the International Labor Organization ("Convention numbered 158"); "Employment of a worker shall not be terminated for reasons related to the worker's conduct or performance before he is provided with an opportunity to defend himself against the allegations made, unless the employer cannot reasonably be expected to provide this opportunity." As is clear in Convention numbered 158, even in cases of termination due to conduct and performance of the employee, the employer is not expected to obtain the defense of the employee in cases where it cannot reasonably be expected. Also, in the preamble of Article 19, it states that it could not be expected that the employer obtain the defense of the employee in cases of physiological and physical inability of the employee, which lends itself to Convention numbered 158, as well.

In accordance with the reasoning and explanations, above, the General Assembly decided that absenteeism of an employee that exceeds the notification period by six weeks is not related to conduct or performance of the employee, and that Article 19 shall not apply in this case, and ruled, therefore, that there is no need to obtain the defense of the employee prior to termination.

Dissenting Vote

In the preamble of the dissenting vote, it is argued that not obtaining the defense of the employee prior to termination for just cause due to health reasons is in violation of the purpose of the Labor Act, the principle of equity, and the principle of interpretation, in favor of the employee.

According to the dissenting opinion, in the case of termination due to health reasons, where the legislator declares that termination within the notification period to be invalid, it would not be fair to terminate the employment contract without obtaining the defense of the employee who is likely to recover after the end of the waiting period. As well, it is not possible to know whether the continuation of the employment contract has become insufferable without obtaining a defense. The employee may be recovered and ready to perform even if the waiting period has been exceeded.

Furthermore, according to the dissenting vote, the interpretation made by the General Assembly is against the letter and system of the law. Article 19 that regulates the requirement to obtain a defense, explicitly exempted only the right of the employer to terminate the contract under Article 25/II. Thus, in the case of absenteeism due to a health condition that is associated with employee's performance, the defense of the employee must be obtained unless the conditions stipulated under Article 19/II are not present.

Lastly, the dissenting opinion argues that the statement of "unless the employer cannot reasonably be expected to provide this opportunity" in Convention numbered 158 was excluded from the Labor act on purpose, as the requirement to obtain the defense of the employee in terminations due to health conditions, is the actual will of the legislator.

Conclusion

In Decisions numbered 2017/9 E. and 2018/10 K., the General Assembly reached the conclusions that if the employment contracts are terminated for just cause due to health conditions, the employers are not required to obtain the employees' defense. Thus, the judgments regarding this issue are unified, and differences in the doctrine and in practice are resolved.

[1] OG, No. 30769, 09.05.2019.

[2] Süzek, S.: İş Hukuku, 16th Edition, Ankara 2018, p. 707-708.

[3]Doğan Yenisey, K.: "İş İlişkisinin Sona Ermesi ve Kıdem Tazminatı", Yargıtay'ın İş Hukuku ve Sosyal Güvenlik Hukuku Kararlarının Değerlendirilmesi (Assessment), İş Hukuku ve Sosyal Güvenlik Derneği, Seminar, Ankara 01-02 December 2017, p. 531-532; Çelik,N.;Canikoğlu,,N.; Canbolat,T.: İş Hukuku Dersleri, 31st Edition, İstanbul, 2018, p. 603; Astarlı, M.: "İş İlişkisinin Sona Ermesi ve Kıdem Tazminatı", Yargıtay'ın İş Hukuku ve Sosyal Güvenlik Hukuku Kararlarının Değerlendirilmesi, İş Hukuku ve Sosyal Güvenlik Derneği, Seminar, İstanbul, 25-26 November 2016, p. 256.

[4] Şenocak, K.; Kılıçoğlu, M.: İş Kanunu Şerhi, 1st ed., İstanbul, 2008, p. 1286.

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