It is seen that the concept of suspicion termination in Turkey, which has been expressed in the German Labour Law System for a while, has started to be used in our law.
Previously unnamed comments on this subject have been conceptualized as suspicion termination and the German Labour Judiciary has been referred to as the source.
This situation shows that the issue is being discussed or will be discussed in our legal system. In this respect, it is important how judicial decisions and legal norms explain the current situation in practice.
Based on the practice, it is expected that the suspicion must firstly arise from a behaviour of the employee and be related to his/her competence. Then, the suspicion in question must be based on serious, important and concrete events that the employer cannot be expected to endure, and it must be understandable by everyone, in other words, it must be objective. Only a suspicion that can be defined at this level can lead to the breach of the trust required for the labour relationship. However, it is seen that the suspicion and the degree of suspicion alone are not sufficient, and at the same time, this suspicion must have a connection with the workplace.
Again, suspicion does not require a negative determination or the existence of a certain fact. As the name suggests, suspicion is related to a fact that has not yet been proven. A fact that can be proved with certainty can only constitute a justified reason, which is conceptualised differently, since it will have other consequences. Although there are justified reasons where only suspicion may be necessary and sufficient, as mentioned, the reasons that justify suspicion are not the subject of this study, and in this sense, suspicion may be sufficient for termination in Turkey for just cause, and the fact may have consequences even if it is doubtful.
Based on these explanations, it seems possible to conceptualise suspicion termination in Turkey, which may constitute a valid reason, as the termination of the employment contract due to a serious, important and concrete event arising from the competence of the employee and related to the workplace, which can be expressed in a serious, important and concrete way, objectively and to the extent that the employer cannot be expected to endure.
After defining the concept of the validity of the termination of suspicion in this way, its conditions should be discussed. In the light of the explanations, it is possible to analyse the conditions for the termination of suspicion for valid reasons under two main headings. The first of these is the conditions necessary for the occurrence of the termination of doubt, which can also be expressed as content conditions. The second one is the formal conditions.
As explained above, in order to be able to talk about the termination of suspicion that may constitute a valid reason, the relationship of trust between the employee and the employer must be undermined. In particular, trust is a phenomenon that establishes a personal relationship and whose existence is essential for the continuation of contracts, such as a permanent employment contract. Accordingly, the labour relationship can only be terminated if the suspicion destroys the trust between the parties. In this case, the necessary condition for suspicion to be a valid reason for termination is that the suspicion destroys the trust between the parties in Turkey. This necessitates the following prerequisites.
i) The first condition for the validity of the termination of suspicion is that the suspicion must arise from the behaviour of the employee. In other words, a behaviour 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 must be taken as a basis. This issue is included in Article 18 of the Labour Law No. 4857, and it is ruled that in addition to the requirements of the enterprise, the workplace and the work, the competence or behaviour of the employee may also constitute a valid reason for the termination of the employment contract for a valid reason.
ii) This validity condition is based on the requirement that the behaviour, words or incident must be related to the workplace or the work performed. On the contrary, if the employee’s behaviour, words or incident is not related to his/her work or workplace, a valid termination cannot be mentioned. Only in this way, it is possible to affect the competence of the employee.
iii) Another validity condition is that the suspicion arising from the employee’s personality and affecting his/her competence and appearing to be related to the workplace must have an objective nature. In this way, it becomes clear that the suspicion is not the concern created in the mind of the employer or the employee, but the concern that would be created by anyone with average experience and knowledge on the subject. In other words, the events should arouse the same degree of suspicion in everyone in the same position. Another basis for the objective nature of the suspicion is that the suspicion must be based on serious, important and concrete events.
In this respect, there must be an event that can be concretely handled and evaluated, and then this event must become serious and important and cause the same degree of anxiety to everyone in the same position.
iv) The last of the conditions for the validity of the termination of suspicion in terms of suspicion constituting in Turkey a valid reason is that the suspicion should cause the employer to be so anxious that he cannot continue the labour relationship. Only when this condition is fulfilled, suspicion can be considered as a valid reason. This situation also shows that the principle of termination as a last resort is not ignored. In other words, even if the employee’s department, job or workplace is changed, the doubt does not disappear, but continues to exist.
As can be seen, only under the existence of these four prerequisites, trust is undermined and it becomes impossible to expect the employer to continue the labour relationship. However, not only the existence of these conditions is not enough, the Labour Law No. 4857 also requires the fulfilment of certain formal conditions.
One of the conditions of validity in the termination of doubt is the formal conditions. The formal conditions are stipulated in Article 19 of the Labour Law No. 4857 and are the conditions that all termination procedures in Turkey that are claimed to be valid must be subject to.
According to the first of these conditions, the termination must be immediately notified to the employee in writing and the grounds for termination must be clearly and precisely set forth in this notification. Another condition is that the defence of the employee must be taken, especially when the behaviour of the employee is in question. Accordingly, a termination without fulfilment of the formal requirements will be deemed invalid even if it meets the other requirements for doubt.
