Termination of Employment Agreements in Light of Art. 435 of the Code of Obligations no. 6098

Termination of Employment Agreements in Light of Art. 435 of the Code of Obligations no. 6098

It has long been established in the Turkish labour law under art. 109 of the Turkish Labour Code no. 4857 that all notifications under the Labour Code must be made in written form, including the notices of termination of employment agreements. Notwithstanding this, the Code does not declare every termination invalid in the absence of a written notice per se. The type of termination has an important role in determining whether a written notice is actually necessary.

In workplaces, where job security provisions do not apply, termination with a written notice is not a requirement but a necessity in terms of proving that the termination has been duly notified. The employment security provisions in art. 18-21 of the Labour Code stipulates for stricter conditions and a specific procedure for the termination of the employment agreements of employees that work for an indefinite term and who have a seniority of at least 6 months in a workplace that employs 30 or more employees. According to the employment security provisions, notification of the employee in written form is a requirement in order for the termination to be deemed valid.

On the other hand, when termination is due to an employee’s act contrary to morality and good faith, employers tend to act hastily in the heat of the moment and skip over written notification. This did not pose a problem during the term of the former Code of Obligations (No. 818) since no specific requirement was provided for termination as per art. 25 of the Labour Code, which lists the grounds that entitle the employer to terminate the employment agreement on justified grounds. Despite that art. 25 had made reference to particular employment security provisions, there was uncertainty on whether the requirement provided under art. 19 of the Labour Code, which requires the termination to be notified in written form, would apply if the contract was terminated as per art. 25. With the entry into force of the Code of Obligations no. 6098, a new provision with a potential to override the said caveat has been introduced. According to art. 435 of the Code of Obligations, in terminations performed on justified grounds, the employee must be notified of the termination and its grounds in written form meaning that verbal notification would result in the termination being declared invalid or unjustified.

Although the Labour Code is a specialized piece of legislation compared to the Code of Obligations, the scholars are keen to apply art. 435 of the Code of Obligations rather than art. 19 of the Labour Code given that the legislators have intended to make a reform to solve the difficulties in practice and to establish a consistency in terms of termination of contract. The fact that art. 435 of the Code of Obligations has come into force later than art. 19 of the Labour Code is another reason for the application of the new provision. Some leading scholars in Turkish labour law have immediately adopted this stance even though the Court of Appeal has yet to establish a unified precedent to shed light on the application of art. 435.

Now that verbal notification has the potential of rendering the termination invalid or unjustified, employers are recommended to use written form in terminating employment agreements.


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