In labour law practices, in addition to the explicit use of the word termination in the written notice of termination or verbally, words that may have this meaning also mean the termination of the employment contract in Turkey and it may even be understood that the employment contract is terminated based on certain attitudes and behaviors of the employee and the employer.
In this context, the actual behaviors and attitudes of one of the parties that may have this meaning are also a factor in the termination of the employment contract in Turkey. Here, it is sufficient that the intention of termination is clearly expressed. Likewise, the Court of Cassation also accepts that the word “termination” does not necessarily have to be used in termination notices, and that this intention can also be manifested de facto. From this point of view, it is understood that it is possible to terminate the employment contract in writing, verbally or in action, and the important thing here is to convey this intention to the other party.
At this point, it becomes clear that the concept of employment contract termination in Turkey by action is different from the written or oral notice of termination. The termination by action is not a clear expression of the will, but a manifestation of the will by action (attitude and behavior). This situation may cause problems in terms of both understanding and proving the intention to terminate the employment contract.
Therefore, it is necessary to reveal the different aspects of the termination by action concept from other termination concepts.
As can be seen, the termination of the employment contract in Turkey, in essence, involves a mechanism by which the employee communicates to the employer that the work that is the subject of the contract will no longer be performed or the employer communicates to the employee that the work that is the subject of the contract will no longer be performed by that employee. In other words, an employee who terminates his/her employment contract notifies the other party that he/she will no longer perform the work that is the subject of the contract, and the employer notifies the other party that he/she does not want this work to be performed by that employee anymore. In this case, the termination of the employment contract in Turkey primarily means that the work that is the subject of the contract will no longer be performed by that employee. From this point of view, since it is a termination, the termination must also include this mechanism. As a matter of fact, in practice, an employee who actively terminates his/her employment contract reveals this will by not continuing to work and the employer reveals this will by not giving work to the employee. Apart from this, the failure to fulfil an obligation under the employment contract, such as non-payment of wages or failure to perform the work diligently, is not a termination in action, but gives the parties the right to terminate.
From this point of view, it is necessary to mention the various manifestations of termination in action. As explained above, the termination of the employment contract in Turkey in action is the act (attitude and behavior) by which the employee tells the other party that the work is no longer desired to be performed by the employee, and the employer tells the other party that the work is no longer desired to be performed by that employee. At this point, it is undoubtedly that any attitude and behavior that reveals the will will will mean termination. For this reason, it becomes very difficult to group the cases of termination by action. However, both the events reflected in the decisions of the Court of Cassation in practice and the characteristics of the concept of termination in action may lead to the conclusion that certain situations are termination in action.
It is understood that the common point here is whether it contains an action (attitude and behavior) manifested in the form of not continuing or not continuing to work.
It is possible to reveal the cases of termination with action by considering them from the perspective of the employee and the employer. In terms of the employee, as mentioned above, non-attendance to work can be considered as termination in action. What is important here is the fact that the employee does not give a written or verbal notice of termination, but terminates the employment contract in an active manner. In this context, when judicial decisions are examined, the first thing that catches the eye is that the employee leaves the job while working without making any written or verbal explanation, as he/she states or claims the reason at the judicial stage. At this point, it is in question that the employee, who is fulfilling his/her daily labour obligation, leaves the work without making a written or verbal statement of will for some reason.
Another issue that means that the employment contract has been terminated by the employee is the absence of the employee from work. However, at this point, it is useful to distinguish between absenteeism and the actual termination of the employment contract in Turkey. While absenteeism refers to the situation where the employee does not attend work for a while but comes to work later, the termination of the employment contract in Turkey by actively not attending work means that the employee does not come to work again. Here, the fact that the employee does not come to work again shows that he has terminated the employment contract in an active manner.
Again, another situation that shows that the employee has terminated the employment contract in action is when the employee files a lawsuit against the employer for labour receivables without any prior explanation. However, this situation should not be limited to filing a lawsuit. Indeed, according to the current legal regulations, it is possible for the employee to request his/her rights arising from employment by applying to the Provincial Directorates of the Labour and Employment Agency or by sending a notice to the employer through a notary public. In this case, the fact that the employee requests his labour rights from the employer by filing a lawsuit or applying to the Provincial Directorate of Labour and Employment Institution or requesting through a notary public, despite the fact that the employee has not made a notice of termination beforehand, shows that he has terminated the employment contract in an active manner. Nevertheless, these cases are not sufficient, these cases must be followed by the fact of not actually continuing to work.
When the issue is approached from the employer’s point of view, it is accepted that any action of the employer such as not giving work to the employee, even if it is not an explicit declaration of will, is accepted as an active termination. In this context, a negative action of the employer, such as not hiring the employee or confiscating the automatic pass card, is listed as a termination in action.
In addition to the fact that the employer’s attitudes and behaviors based on not giving work to the employee are accepted as a termination, some employer practices have been decided as a reason for termination by action in the absence of the employee’s acceptance, and it is seen that the most important employer practice in this context is the unpaid leave practices and the suspension of the employment contract related to this.
Accordingly, unilateral suspension of the employment contract by the employer without giving a reason, granting unpaid leave without the explicit acceptance of the employee, not starting work upon return from unpaid leave, suspension of the employment contract in the middle of the year and not calling for work for a long period of time constitute a termination by action.
Another important issue in terms of suspension of the employment contract is seasonal work. The Court of Cassation, within the scope of seasonal work and suspension of the employment contract, has not accepted the suspension of the employment contract due to seasonal work as a termination by itself, but has also ruled the failure to call for work at the beginning of the new season as a termination.
In addition to these, some other employer practices are also recognised as termination in action. In this context, the facts of obtaining a forced resignation petition from the employee by threat and pressure or the process of sending the employee to retirement have been concluded by accepting the employer’s use of a termination will as the employer’s intention not to employ the employee.
Another problem in the concept of employment contract termination in Turkey by action is the problem of proof, as termination by action does not contain an explicit declaration of will. In practice, problems of proof frequently arise as to whether a termination has taken place in cases of termination by action due to the lack of a written declaration, or which termination is in question if both parties have used their will to terminate.
Indeed, as explained above, in cases of termination by action, it is of great importance for the other party to know whether there is a termination in question and to reveal that a termination by action has occurred when it is necessary to investigate whether there is a will to terminate in order for the consequences of the termination to arise. At this point, if the termination in question is realised by the employer, it is seen that the condition of proof is more easily fulfilled. At this point, although it does not carry the word termination in writing, it immediately comes to mind that workplace practices regarding unpaid leave or suspension of the employment contract, employer’s letters in this direction that do not include employee acceptance, collective bargaining agreement or employment contract provisions regarding suspension and subsequent recall to work and practices regarding whether the transaction has been carried out in accordance with these provisions, minutes, announcements and notifications containing these issues, witness statements may be effective in providing the condition of proof.
In cases where the employment contract is terminated by the employee, it is seen that the proof may be more difficult. Particularly in cases of termination by action, which is manifested by the employee leaving the job and/or not continuing to work, the employer is left in a state of uncertainty, and in this case, which is often confused with the concept of absenteeism, it becomes clear that a termination is made by the employee, when the employee applies to the Provincial Directorate of Labour and Employment Agency or the labour court or sends a notice to the employer through a notary public and claims his/her rights.
Especially in cases of abandonment and non-attendance at work, the employers may issue absenteeism reports and terminate the employment contract. However, the fact that the employee applies to the official institutions and attempts to seek his/her rights on the days when he/she appears to be absent indicates a termination that took place before. In this case, trying to prove only the concept of absenteeism and even terminating the employment contract in writing by the employer based on these means of proof may make it impossible to prove the real reason or may lead to misunderstandings.
In such a case, the fact that the employee left the work and/or did not continue to work should be proved by appropriate means and the procedure should be established that the employee terminated the employment contract. If there is an act of termination by the employee, which is basically manifested in the form of leaving the work or not continuing to work, this issue will be taken as a basis in the proceedings, and then the employer’s termination based on the absenteeism minutes will not be of any importance.
Based on these explanations, a problem arises in the case of termination of the employment contract in action, which is not experienced in the written termination of the employment contract in Turkey, and it is necessary to first determine whether there is a termination or not. Firstly, after the fact of termination is established, the issue of whether the termination is justified or unjustified, or valid or invalid comes next.
