1-IN GENERAL
25 of the Labor Code No. 4857 on the right of the employer to terminate it immediately for a justified reason. It is regulated in the Article. The relevant article regulates the reasons that give rise to the employer’s right to immediate termination under different headings. These are: (1) due to health reasons, (2) contradicting the rules of ethics and good faith, and so on, (3) force majeure and (4) in the event of arrest or detention of employees, as it exceeds a certain period of absences is organized under four main headings.
It does not matter whether the employment contract signed with the employee is of a certain or indefinite duration, if the employer uses the right to terminate it immediately for a justified reason.
18 of the Same Law. In the article, the employer’s right to terminate for a valid reason is regulated. The termination cases in question are regulated by the law under two main headings; (1) valid reasons arising from the competence or behavior of the employee and (2) the requirements of the enterprise, workplace or work.
2-THE RIGHT TO TERMINATE FOR A VALID REASON
As mentioned above, the right to terminate for a valid reason, regulated by Article 18 of the Labor Code, is collected under two main headings.
Reasons arising from the competence or behavior of the employee:
We can divide the incompetence of the worker into two as the physical incompetence of the worker and the professional incompetence of the worker. The employee’s illness, old age and retirement status are considered to be physical incapacity states. The professional incompetence of the worker, on the other hand, is the employee’s lack of quick decision-making, initiative, etc. The Supreme Court has sought the continuity of this situation and the low performance of the worker compared to other workers doing the same job as him, related to professional incompetence.
According to Article 19/2 of the Labor Code, it is necessary to obtain a written defense of the employee before the termination of the employment contract for reasons arising from his competence or behavior. Termination of the employment contract without receiving a written defense of the employee will not be considered termination for a valid reason.
Valid reasons arising from the requirements of the enterprise, workplace and work:
At each termination related to this valid reason, it is decided whether the reason is valid by taking into account the concrete event. However, in general practice, there are basic criteria adopted by the Supreme Court. The employment contract of the employee must be terminated for the reason arising from the requirements of the enterprise, workplace and work, and the termination must be applied for as a “last resort”.
If it is possible for an employee to work at another job in the same workplace, or if it is possible for him to work at another workplace belonging to the enterprise, termination of his non-employment and termination of his contract is not considered termination for valid reasons.
In case of termination of the employee’s employment contract based on the said valid reason, all solutions should be tried by the employer, and if the tried solutions do not yield any results, the termination of the employee’s employment contract should be taken as a last resort.
3-TERMINATION FOR A JUSTIFIED REASON-SEPARATION OF TERMINATION FOR A VALID REASON
Upon termination for a valid reason, Article 25 of the Labor Code. The actions of the employee, which are not in the nature of the reasons specified in the article and which give the right of immediate termination, but which are contrary to the employment contract, are raised.
The right of immediate termination of the employer may be applied to all workers covered by the Labor Code, but the right of termination for a valid reason may only be applied to workers covered by Labor Protection. in workplaces employing 30 or more employees, employees who have completed at least 6 months of seniority and are not an employer’s deputy are considered to be covered by the provisions of the labor guarantee.
For this reason, in cases of termination, the employee does his job, but he does it incompletely, does it poorly, or does it inadequately. Behaviors that provide a basis for a valid reason should not be as severe as the conditions for a justified reason set out in Article 25 of the Labor Code. The common Dec between termination for a valid reason caused by the employee’s behavior and termination for a valid reason is that they are based on a defect. The difference is manifested in the degree of severity of the defect.
For this reason, it is necessary to have a reason that damages the relationship in such a way that the continuation of the employment contract cannot be expected from the employer’s point of view at the termination. If the valid reason is in termination, it is necessary to have a reason that does not weigh the justified reason, but makes it impossible to continue the employment contract.
Therefore, when one of the reasons for termination is raised, the employer will have the right to terminate the employment contract immediately and will not be obliged to pay severance pay to the employee. However, in case of termination for a valid reason, the employment contract may be terminated under certain conditions specified in the law, the employee will be granted the termination periods specified in the law, or notice compensation will be paid, and the severance pay that the employee deserves will be paid to him.
4-THE PERIOD OF USE OF THE RIGHT OF TERMINATION
The period for exercising the right of immediate termination is limited to 6 working days for dismissals that the employer will perform in accordance with Article 25 / II of the Labor Code.
The employer will not be able to use the right to terminate the contract on the basis of non-compliance with the rules of morality and goodwill after 6 working days have passed since the day the employee finds out that he has committed such behavior, and in any case one year after the fact that the act has occurred. However, if the employee provides material benefits in the event, a one-year period is not applied.
Although the employer has the right to dismiss without compensation for a justified reason, if the period prescribed by law has been missed, the employer will now be able to dismiss the employee with compensation for a valid reason, rather than dismiss him without compensation for a justified reason. For this reason, after the employer finds out the reason for the termination that led to the termination of the employee’s employment contract, the employer will need to use the right to terminate it within a “reasonable period of time”.
We would like to note that no determination has been made regarding reasonable time in the law and the reasonable time criterion has been examined by the Supreme Court separately according to each concrete event.
finally;
Termination for the rightful reason described above and termination for the valid reason are also situations that allow the employer to terminate the employment contract signed with the employee. Termination on the basis of a valid reason does not include such weighty reasons as termination on the basis of a justified reason. While there is a common point between both reasons for termination, the defect based on the justified reason for termination is greater in weight than the valid reason for termination. For this reason, in order to draw the boundaries of termination, each concrete event will need to be examined separately, and as such, it makes sense at the discretion of the judge.
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