Again, it is observed that the concept of pressure termination of employment contract, which has been expressed in the German Labour Law Request for a long time, has started to be used in Turkey and opinions have been produced in judicial decisions and doctrine on this subject.
In this context, especially in the service sector, in workplaces such as hotels, restaurants and entertainment venues, the termination of the employee’s employment upon the requests of the customer or upon the request of the contracting authority in tendered works constitute frequent examples of pressure termination of employment contract in Turkey. Apart from this, it should be emphasized that duress termination is an issue that can be encountered in almost every sector.
As a matter of practice, it is seen that pressure termination of employment contract in Turkey, in the simplest sense, is caused by another person pressurizing the employer to dismiss the employee. It comes to mind that such requests may be made by the contracting authorities, customers, other employees of the workplace, persons with whom the employer has commercial relations, and in some cases, the trade union.
In this context, it seems possible to define duress termination as a termination situation that occurs when a third party, other than the employer but related to the employer, creates a serious pressure on the employer to terminate the employment contract in Turkey of a certain employee and threatens the employer that the relations with the employer will deteriorate if the termination does not take place.
On the other hand, it may be considered that the pressure may arise from a behaviour of the employee that can be defined and proved, or such behaviour may not exist at all. More precisely, in a situation where the employee has actually engaged in a behaviour that requires the termination of the employment contract and this situation has been communicated to the employer by a third party by creating an element of pressure, in this case, the employee’s behaviour will gain importance when the employment contract is terminated and the issue will need to be addressed and resolved outside the concept of pressure termination.
Based on the definition and in the light of the legal regulations, it seems possible to analyse the validity conditions of the termination of pressure under two sub-headings as content conditions and form conditions.
As can be seen, in order to be able to speak of duress termination, first of all, it is necessary to create a pressure on the employer to terminate the employment, although the employee’s behaviour does not lead to this result. When the pressure is analysed according to its intensity, content and the person who directs it, it shapes the termination of pressure. Finally, the pressure must include a serious threat or practice that the economic relations of the employer will deteriorate. In this respect, it is necessary to make the following explanations.
I) The first condition for the validity of duress termination is that the duress does not arise from the behavior of the employee. In other words, it should not be based on a behavior or a word of the employee in the present or in the past, or a fact or event related to the employee and affecting his/her competence. In this case, if an employee’s behavior constitutes a valid reason for termination, the third party’s pressure for termination cannot be considered as a pressure termination of employment contract in Turkey. In this case, the behavior of the employee, the nature of the behavior and how it is proved will gain importance.
Regarding this issue, since Article 18 of the Labour Law No. 4857 stipulates that the requirements of the enterprise, the workplace and the business, the competence of the work or the behavior of the employee may constitute a valid reason for the termination of the employment contract for a valid reason, it becomes clear that in the case of pressure termination of employment contract in Turkey, the termination should be handled under the concept of the requirements of the enterprise, the workplace and the business. As a matter of fact, the fact that the pressure is likely to damage the economic relations of the employer confirms this approach.
ii) The other condition is related to the element of pressure. As vaguely mentioned above, the pressure must be directed towards the employer from another third party who is in a relationship with the employer.
Within this third party concept, it is conceivable that there may be contracting authorities, customers, other employees of the workplace, persons with whom the employer has commercial relations, and in some cases the trade union. On the other hand, the pressure must be directed towards the dismissal of a certain worker or workers. In this respect, merely complaining, making a request without specifying the person, asking for another disciplinary practice cannot be considered as pressure termination. It does not matter whether the pressure is written or verbal. In this respect, just complaining, making a request without specifying the person, requesting another disciplinary practice cannot be considered as a termination of pressure. It does not matter whether the pressure is written or verbal. In this respect, it comes to mind that the fact that the pressure is in writing will not affect its validity, but it will be appropriate to be in writing in order to facilitate its proof.
iii) Another validity condition is that the pressure must pose a serious threat in an objective sense. In this context, a threat must be directed to the employer that his commercial relations will be damaged, that he will suffer loss of rights, that the enterprise will lose business, customers and money, and this must objectively have the same effect on every employer to whom it is directed.
iv) The last condition for pressure termination to be a valid reason for termination is the fact that the threat cannot be removed or avoided despite the behaviour expected from the employer. In this context, the expected behaviour of the employer is to stand by the employee. As mentioned, since the termination of duress does not arise from the behaviour of the employee, the employer is expected to stand by the employee in the first stage under the concept of the obligation to protect the employee. If this is not possible, another way that can be tried is to change the employee’s job or workplace. However, in this case, the provision of Article 22 of the Labour Law No. 4857 comes into effect and it will mostly mean a fundamental change in the conditions of employment and the fact that the employee does not agree to this process may be encountered. Under the existence of a pressure termination with well-defined conditions, the employee, who is motivated to protect his/her job, may be expected to accept the change of job or workplace as a matter of fairness in the context of the employer’s efforts.
In particular, the works and transactions to be carried out in order to realise this last condition will function in the sense of forming an opinion that the termination is applied as a last resort. From this point of view, it should be kept in mind that the termination of the employment contract just because the third party wants it will not constitute a valid reason.
As can be seen, in the context of the content, only under the presence of these four conditions, pressure termination of employment contract in Turkey may constitute a valid reason for termination in accordance with business necessities. However, not only the existence of these conditions is not enough, the Labour Law No. 4857 also seeks whether certain formal conditions can be fulfilled.
The formal conditions are the conditions stipulated in Article 19 of the Labour Law No. 4857 and are essentially the conditions that all termination procedures that are claimed to be valid must be subject to. In this context, for the validity of the termination of pressure, in addition to the content conditions, it is necessary to fulfil the formal conditions addressed in the specified article provision.
When these conditions are evaluated, it is seen that the formal requirement for termination of pressure is that the termination must be immediately notified to the employee in writing and the grounds for termination must be clearly and precisely set out in this notification. The other condition specified in the text of the article is the obligation to take the defense of the employee. However, since the behavior and productivity of the employee are not effective in the termination of pressure, it may not be necessary to take the defense of the employee. However, in any case, since the employee is under an allegation, a written defense to be taken from the employee about whether the situation alleged by the third party exists or not, and the request of information and documents to support this defense from the employee will have an effect on whether the termination is a valid termination or not.
