ABSTRACT
Several issues regarding labor law which hold great importance in practice have recently been clarified by decisions of the Court of Cassation. One of these decisions clarifies the employer’s right to immediately terminate an employee’s employment contract in the event of the employee’s absenteeism due to health issues. The legislator has foreseen several methods for the employer to terminate an employment contract. Article 19 of Labor Act No. 4857 (“Labor Act”) regarding termination procedure states that in cases where an employer terminates an employment contract due to reasons such as the employee’s performance or conduct, the employer must obtain the employee’s defense beforehand. In relation to this, varying opinions have arisen in the literature and reflected in the decisions of the Court of Cassation regarding the necessity of obtaining a defense from the employee in the event that an employment contract is to be immediately terminated following the employee acquiring medical reports in accordance with (b) of the first paragraph of Article 25 of the Labor Act. This article briefly examines the employer’s right of termination and then the 2018 decision of the Court of Cassation General Assembly on The Unification of Judgments (“CCGATUJ”) regarding this matter.
I. INTRODUCTION
In accordance with Article 19 of the Labor Act, an employer is required to send notice of termination in written form and to explicitly and accurately state the reason for termination. An employee’s employment contract cannot be terminated due to issues such as the employee’s performance or conduct unless the employee has been able to provide a defense beforehand regarding the allegations. The employer’s right to terminate the employment contract in accordance with Article 25/II of the Labor Act (due to serious misconduct or malicious or immoral behavior of the employee) is, however, reserved. A debate that has recently arisen in the literature is whether it is necessary to obtain an employee’s defense in cases of immediate termination to be made by the employer for justifiable cause in the event of absenteeism exceeding the waiting period due to health issues, which are regulated as a condition of termination for just cause in the first paragraph of Article 25 of the Labor Act, exceeding six weeks to be added to the notification period1.
Due to the fact that the relevant civil chambers of the Court of Cassation have different opinions on this matter2, it has been decided that the unification of judgments regarding whether it is necessary to obtain the employee’s defense in immediate terminations in accordance with (b) of the first paragraph of Article 25 of the Labor Act is necessary. According to the CCGATUJ decision dated 19.10.2018 numbered 2017/9 E. and 2018/10.K/, in order for an employer to immediately terminate an employment contract for justifiable cause, it is not necessary to obtain an employee defense in cases of absenteeism exceeding the waiting period due to health issues, i.e. the exceeding six weeks is added to the notification period.
II. EMPLOYMENT CONTRACTS AND TERMINATION
A. Employment Contracts
According to Article 8 of the Labor Act, an employment contract “is an agreement whereby one party (the employee) undertakes to perform work in subordination to the other party (the employer) who undertakes to pay him remuneration.” Article 393 (General Service Agreement) of the Turkish Code of Obligations numbered 6098 (“TCO”) defines the employment contract as “an agreement in which the employee is obliged to perform a work for a limited or unlimited time in the service of the employer and the employer is obliged to pay a salary based on the amount of time the employee works or the amount of work the employee performs.” As can be deduced from these definitions, the main elements of an employment contract are performance of work, remuneration and subordination. The work referred to includes all kind of works of a natural person that can be defined as work in economic terms3. In Article 9 of the Labor Act, it has been stated that employment contracts can be concluded for a definite or indefinite amount of time, and the contract types are defined in Article 11. According to Article 11 of the Labor Act, employment contracts for indefinite periods are the rule, employment contracts for definite periods are the exception4. If there is any hesitation about whether an employment contract is for an indefinite or definite period, the employment contract shall be deemed to be for an indefinite period5.
B. Expiration of Employment Contracts
An employment contract involves continual work and personal relationship between parties and mutual obligations6. Even if an employment contract contains continuity, it does not mean that the employment contract never expires, as if every private law contract establishes certain conditions, the employment contract expires. Expiration reasons for employment contracts can be classified into two groups: termination reasons and reasons that exclude termination7.
1. Expiration of Employment Contracts Due to Reasons Other Than Termination
Firstly, an employment contract ipso facto expires in the event of the employee’s death under Article 440 of the TCO. However, in the event of the death of the employer, the employment contract does not ipso facto expire. The exception to this rule is where the identity of the employer is relevant to the employment contract, which is in paragraph 2 of Article 441 of the TCO. When this is the case, the contract ipso facto expires in the event of the death of the employee. In addition, in a fixed-term employment contract, the employment contract ipso facto expires when there is an agreement between the employee and employer to terminate the employment contract upon expiry of the period specified8.
2. Expiration of Employment Contracts Due to Termination
Termination of employment contracts is a subsequent formative declaration of intention which terminates a continuing legal relationship between the parties unilaterally and anticipatorily9. Since the notice of termination takes effect when the will of the holder of right reaches the other party, it is not necessary to get the approval of the other party10. The notice of termination is not subject to any special form. Notification can be made in written or oral form11. Even though Article 19 of the Labor Act states that the notice of termination is subject to written form, the written form is not a validity condition, it only serves as a proof of notice12.
According to the Court of Cassation, the notice of termination may not always be made explicitly. If it is understood from the events that the employment contract is terminated due to the actions of one of the parties, this conduct should be determined as termination13. Such a termination is called ‘active termination’ by the Court of Cassation. In some cases, termination is understood by an employer’s negative actions, for example, retrieving an entrance card from the employee. In other words, it is not necessary to clearly indicate the termination in the declaration of intention. When the declaration of will reaches the other party, it is sufficient to understand that the owner of the will wants to end the employment relationship14. On the other hand, as specified on the Article 19 of Labor Act, in the event of the employment contract of employee who benefits from the employment security is terminated by the employer for a valid reason, the notice of termination shall be given by the employer to the employee, in written form involving the reason for termination which must be specified in clear and precise terms15.
Termination of a definite employment contract is occurs in two ways, the period of notice of termination and termination for just cause. In such a contract, termination cannot be made within the notice period. There must be just cause in order to terminate the employment contract before the end of the term.
C. Notice of Termination of Employment Contracts
Notice of termination of employment contracts is regulated in Article 17 of the Labor Act. Under this article, “Before terminating a continual employment contract made for an indefinite period, a notice to the other party must be served by the terminating party.” In this way, the party who wants to terminate the employment contract with notice of termination has to inform the other party of their termination decision.
Another issue to be considered by employers is whether the employee is subject to provisions of job security16. For employees subject to the provisions of job security stipulated by the Labor Act, employers are obliged to give notice of termination based on a valid reason. This valid reason for such termination can consist of the capacity or conduct of the employee or based on the operational requirements of the establishment or service. These valid reasons regulated in Article 18 of Labor Act are not as severe as those mentioned in Article 25, but they should adversely affect the functioning of the work and establishment17. Therefore, a reason for valid termination is the conduct of the employee or termination is based on the operational requirements of the establishment or service. It is necessary to acknowledge that valid reasons for termination are deemed where the employer cannot be expected to continue the employment relationship to an important and reasonable extent18.
As mentioned above, employment contracts for an indefinite period can be terminated without just cause in the event of the employer informing the employee of notice of termination. In this event, the employee has the right of payment in lieu of notice.
In terminations with a period of notice, unless otherwise provided for in the employment contract, an employee shall continue to work during the notice period19. If the employer does not want the employee to work during the notice period, the employer can terminate the employment contract by paying in advance the employee’s wages corresponding to the term of notice.
Under Article 18 of the Labor Act, the employer can terminate the employment contract for valid reasons such as working less efficiently on average, performing less than expected from their qualifications, gradually decreasing concentration, a lack of capacity in work, a learning and self-improvement disability, frequently getting sick, illness that continually impedes their work20. The incapacity of an employee can be divided into two: i. professional inability and ii. physical inability. The physical inability of the employee is incapacity to work through illness, accident, etc. which makes it impossible for the employee to carry out her/ his own work or any other work, and which can be certain temporarily and completely or partially21. However, pursuant to Article 25 of the Labor Act, physical insufficiency such as illness, accident and pregnancy may also constitute a termination for just cause by the employer in the event that the employee cannot continue the work for the length of time.
When there is a casual relation between incapacity of the employee and his/her work, physical inability can be accepted as a valid reason. Incapacity is required to affect adversely the functioning of the work and establishment and prevent the employee’s obligations to work22. Professional inability is working less efficiently on the average23. If there is professional inability and physical inability, it is not necessary to prove the fault of the employee in order to be in question right to terminate of valid reason24.
Under Article 18 of the Labor Act, the conduct of the employee may be the cause of a valid termination. Although as severe as termination for just cause regulated in the Labor Act, the conduct of the employee that adversely affects the functioning of the work and coordinates in the establishment are valid reasons for termination. In justification of the Labor Act, there are examples where a valid termination can be made due to the conduct of the employee. In the preamble of the Act, situations such as “take it’s a toll on the employer, working in the establishment tauntingly, asking her/his friends to loan of money, playing employees off against the employer...” are provided as examples of valid reasons arising from the conduct of the employee. Under Article 19 of the Labor Act, the notice of termination given by the employer shall be in written form and include the reason for termination which must be specified in clear and precise terms. The employment of an employee engaged under a contract with an open-ended term shall not be terminated for reasons related to the worker’s conduct or performance before he is provided with an opportunity to defend him/herself against the allegations made against them. The employer’s right to break the employment contract in accordance with Article 25/II of the Labor Act (for serious misconduct or malicious or immoral behavior of the employee) is, however, reserved. In Article 19 of the Labor Act it is indicated that there is no need to take a defense from an employee in the event that termination is related to the employee’s performance. As a consequence, concepts of sufficiency as termination for a valid reason and efficiency in which it is necessary to take defense from the employee before the termination is discussed in the literature25.
According to the majority opinion in the literature, termination of an employment contract with a valid reason that is regulated under Article 18 is compliant with Article 19. As a consequence, the performance of the employee, as regulated in the second paragraph of Article 19, should be accepted as a sufficient reason26. On the other hand, Gülver argues that the declaration of performance is chosen consciously and is different from the capacity of the employee27. Mollamahmutoğlu, Astarlı and Baysal state that the reasons for the performance of the employee should be broadly interpreted and understood as the reasons related to the employee’s work28. Similarly, Ekonomi argues that situations in which a defense is to be taken are limited to the valid reasons regarding the conduct or performance of the employee29. Thus, if the employment contract is terminated by the employer based on the efficiency of the employee with the exception of performance, there is no question regarding whether to take a defense from the employee. Şenol and Kılıçoğlu, on the other hand, states that it is not necessary to take a defense in cases of incapacity of the employee where it gives the right to terminate the employment contract, regardless of the employee’s performance. According to Şenol and Kılıçoğlu, it is not necessary to take a defense from an employee where the case is the objective incapacity of the employee; but it is necessary to take a defense from the employee where the case is based on the subjective incapacity of the employee30.
D. Termination of Employment Contracts for Just Cause
The right of termination for just cause is a subsequent formative right that entitles the party to terminate either a definite or indefinite term employment contract immediately when it cannot be expected for the business relationship to continue in accordance with good faith31. Otherwise, just cause does not end the employment contract automatically, it only provides the right to terminate it.32 Under Article 26 of the Labor Act, “The right to break the employment contract for the immoral, dishonorable or malicious behavior of the other party may not be exercised after six working days of knowing the facts, and in any event, after one year following the commission of the act, has elapsed. The “one year” statutory limitation shall not be applicable, however, if the employee has extracted material gains from the act concerned.” The six-day period is not applied to reasons of health and force majeure or detention of termination under Articles 24 and 25. An employee’s right to break the contract for just cause is regulated in Article 24 of the Labor Act and breaking an employment contract for just cause by the employer is regulated in Article 25 of the Labor Act33.
Termination for just cause by the employer and the employee is regulated as reasons of health, force majeure, immoral, dishonorable or malicious conduct or other similar behavior. Termination for just cause by an employer is only regulated as absenteeism if the employee has been taken into custody or is arrested.
E. The Employer’s Right to Terminate for Health Reasons
Under Article 18 of the Labor Act, absenteeism of the employee due to health reasons can be a valid reason for termination. Moreover, it can constitute a just cause for termination under Article 25 of the Labor Act.
1. Valid Termination of Employment Contracts by the Employer
The event of an employee exceeding the waiting period is regulated in (b) of the first paragraph of Article 25 of the Labor Act as illness or accident. Then the employer can terminate the employment contract for a valid reason. Cases where the total time of medical certificates provided by the employee does not exceed the notification period is regulated under Article 17, which is compatible with Article 18, for instance, frequently being sick is regarded as a valid reason. If an employee is frequently sick and this affects their performance at work negatively, the employer has a valid reason to terminate the employment contract. Under Article 19 of the Labor Act, it is necessary to take a defense from the employee in cases of termination for a valid reason related to their conduct and performance.
2. Termination of Employment Contracts for Just Cause by the Employer
In Article 25 of the Labor Act, termination for just cause due to reasons of health is regulated as “If the employee has contracted a disease or suffered an injury owing to his own deliberate act, loose living or drunkenness, and as a result is absent for three successive days or for more than five working days in any month.” and “If the Health Committee has determined that the suffering is incurable and incompatible with the performance of the employee’s duties.” In these cases, an employer can terminate an employment contract for just cause. Since the reason for immediate termination for the rightful reason laid down in paragraph (b) of Article 25 is also the subject to the decision of the Court of Cassation, it will be evaluated under a separate heading below34.
3. Employee Absenteeism Exceeding the Waiting Period for Reasons of Health
In the second paragraph of sub-paragraph (b) of the first paragraph of Article 25 of the Labor Act titled ‘For Reasons of Health’, employee absenteeism which exceeds the waiting period for reasons of health is regulated as the termination of the employer for just cause. Under this Article, “In cases of illness or accident which are not attributable to the employee’s fault and which are due to reasons outside those set forth in (a) above and in cases of pregnancy or confinement, the employer is entitled to terminate the contract if recovery from the illness or injury continues for more than six weeks beyond the notice periods set forth in article 17. In cases of pregnancy or confinement, the period mentioned above shall begin at the end of the period stipulated in Article 74. No wages are to be paid for the period during which the employee fails to report to work due to the suspension of his (her) contract.” According to the Court of Cassation, the fact that an employee has medical release due to an occupational accident does not prevent the employer from terminating the employment contract due to the conditions regulated number (I) paragraph of Article 25 of the Labor Act.35
These periods specified in Article 17 of the Labor Act are minimum. They can be increased in favor of the employee by the contract. Accordingly, absenteeism that does not exceed periods to be foreseen does not entitle termination of the contract. To terminate the contract, it is necessary that absenteeism exceeds these periods36.The employer can use the right to termination for just cause at any time period in which the employee is absent beyond the expiry of the period in question37.
The literature discusses whether it is necessary to take a defense from an employee for termination of thier employment contract due to the employee’s health There was also a difference of opinion within the Court of Cassation Civil Chambers. Indeed, Civil Chamber no. 9 and no.22 of the Court of Cassation give different views on this issue. In practice, these civil chambers also have different implementations. It was decided that it is important to settle this difference of opinion with the unification of decisions by the Court of Cassation General Assembly on The Unification of Judgments.
3.1. Decisions of the Court of Cassation Defending the Necessity to Take a Defense From an Employee in Terminations due to Reasons of Health
According to the decisions of the Civil Chamber no.9 of the Court of Cassation, under the first paragraph (b) of Article 25 of the Labor Act, defense should be taken from an employee upon termination of their employment contract for just cause due to medical certificates provided by the employee. Article 19 of the Labor Act provides justification of this decision. The article reads: “The employment of an employee engaged under a contract with an open-ended term shall not be terminated for reasons related to the worker’s conduct or performance before he is provided an opportunity to defend himself against the allegations made. The employer’s right to break the employment contract in accordance with Article 25/II of the Labor Act (for serious misconduct or malicious or immoral behavior of the employee) is, however, reserved.” Associated with this provision, it is considered necessary to take a defense from an employee to terminate their employment contract for conduct or performance. When a defense is not taken from the employee, the termination of the employment contract is not valid. Under Article 25 of the Labor Act, in terminations of employment contracts by employers for reasons of health, it is necessary take the employee’s defense, as reasons for health are related to the performance of the employee38.
3.2. Decisions of the Court of Cassation Defending the Position it is Not Mandatory to Take a Defense From an Employee in Terminations due to Reasons of Health
The decisions of the Civil Chamber no.22 of the Court of Cassation refers to the first sentence of Article 25 and first paragraph (b) of Article 25. Article 7 of Expiration of Work Relationship Contract no 158 of the ILO is approved by Turkey. An exception to the continuation of the employment relationship cannot be expected from employer, it is not possible to terminate an employment contract for conduct or performance of the employee before taking a defense from the employee. In addition, the second paragraph of Article 19 reads: “The employment of an employee engaged under a contract with an open-ended term shall not be terminated for reasons related to the worker’s conduct or performance before he is provided an opportunity to defend himself against the allegations made. The employer’s right to break the employment contract in accordance with Article 25/II of the Labor Act (for serious misconduct or malicious or immoral behavior of the employee) is, however, reserved.” Although Article 18 of the Labor Act regulates the notion of sufficiency, Article 19 of the Labor Act regulates the notion of performance. That said, if an employer terminates an employment contract due to the insufficiency of the employee’s performance, it is not necessary to take the employee’s defense. Justification of the Act is explained in the cases of mental incompetence and the physical inability of the employee. In such cases, the employer does not have to take a defense from the employee. It is therefore concluded that the legislator consciously uses the notions of sufficiency and performance differently. Notions of mental incompetence and physical inability as justification of the Act referred to the first paragraph of Article 25 of the Labor Act. However, under Article 25 of the Labor Act “The employee may file a lawsuit according to Articles 18, 20 and 21 by claiming that the termination did not conform with the subsections cited above.” This provision is not clearly attributed to Article 19 of the Labor Act. This situation has revealed that in terminations according to Article 25, it is not necessary to take a defense from the employee. In this respect, in terminations of an employment contract immediately by an employer under the first paragraph (b) of Article 25 of the Labor Act, the Court of Cassation decides that it is not necessary to take a defense from the employee in terminations of an employment contract due to medical certificates provided by the employee39.
3.3 The Opinion of the General Assembly of the Civil Chamber
Before 2015, both the 9th and 22th Civil Chambers of the Court of Cassation did not deem it necessary to obtain an immediate defense from an employee due to reports received by the employee pursuant to paragraph (b) of Article 25 (1) of the Labor Act. However, in 2015, the 9th Civil Chamber changed its opinion and argued that it is necessary to take a defense from the employee. Related to this point, the Court Cassation of the General Assembly did not come to a decision regarding the period due to the differing opinions between its chambers.
In 2018, the Court of Cassation General Assembly ma,de a decision of unification of judgment regarding the issue. According to the ruling of this decision the purpose of taking a defense from an employee before termination is to give the employee a chance to learn the reasons of the termination and to provide the circumstances surrounding the issue. This gives the employee an opportunity to dissuade the employer from carrying out the termination. In other words, taking a defense from an employee before termination is not a formal element. This practice is assessed as an element that might negatively affect the business relationship. This means that an employee who is informed of this can correct any negativity related to his/her conduct or performance which the employee can dispose or change40. Thus, it is not necessary to take a defense from an employee in cases that are not caused by the employee or not related to the employee or which the employee cannot dispose of. Accordingly, the legislator did not regulate that it is not mandatory to take a defense from the employee in every termination made by an employer under the second paragraph of Article 19 of the Labor Act. As a matter of fact, it is not possible for an employee to defend themself against termination due to the enterprise’s necessities which has no relation with the employee41.
Article 19 of the Labor Act regulates the issue of taking a defense from an employee. This means the legislator has provided an exception to this article and reserved (II) of Article 25 of the Labor Act42. Concerning this provision, the Generally Assembly of the Court of Cassation evaluates whether it is necessary to take a defense from an employee in termination for just cause in accordance with the other paragraphs of Article 25. As a result, the Court of Cassation states that it is not necessary to take the employee’s defense in terminations for just cause, as it was not clearly attributed to Article 19 and the last paragraph of Article 25 of the Labor Act. According to the Court of Cassation, the reason that only paragraph (II) of Article 25 of the Labor Act is stated in Article 19 is not due to the fact that it is necessary to obtain a defense in cases other than this paragraph, but the fact that the last paragraph of Article 25 does not require a defense to be obtained43. As mentioned in the decisions of the joint chambers, according to the legislator, it is not necessary to take a defense from the employee in paragraphs excluding paragraph (II) of Article of 2544.
In light of this finding, the Court of Cassation argues that terminations of employment contracts for just cause due to the absence of an employee exceeding the waiting period is not considered a reason related to the conduct or performance of the employee since just cause is absence exceeding six weeks added to the notification period. Absence of the employee that exceeds the notification period constitutes a present case. Since there is no suggestion as to whether the employee has any health issues or the falsity of the report received, the defense to be taken from the employee has no value for the employee and the employer45. Under the Expiration of Work Relationship Contract no 158 of ILO, in terminations regarding the conduct or performance of an employee, the employer is not obliged to take a defense from the employee where continuation of the employment relationship cannot be reasonably expected from the employer. The justification of Article 19 of the Labor Act emphasizes that it is not expected to take a defense from an employee in the event of mental incompetence and physical inability of the employee in the line with Contract no 158. Thus, mental incompetence and physical inability of the employee mentioned in justification of Article 19 of the Labor Act is exclusive to the first paragraph of Article 25 of the Labor Act.
The Court of Cassation, in accordance with the reasons explained and presented above, concludes that it is not necessary to obtain a defense from the employee immediately upon termination due to the medical reports received in accordance with the first paragraph (b) of Article 25 of the Labor Act.
3.4. Evaluation of the Dissenting Vote
According to the opinion explained in the dissenting vote, termination of contracts due to reasons of health in which the legislator considers termination to be invalid is not fair without the defense of the employee who may recover their health after expiration of the waiting period. Moreover, it is uncertain whether the employment relationship will become unpleasant without taking a defense from the employee. After the waiting period, the employee can recover their health in a short time and be ready to work.
On the other hand, the dissenting vote argues that the interpretation made by CCGATUJ is contrary to the letter and purpose of the law, and to the principle of interpretation in favor of the employee. The reason for this is that Article 19 of the Labor Act reserves the right of the employer to terminate according to paragraph (II) of Article 25. Absenteeism due to health is related to the performance of the employee and it is necessary to take a defense from the employee in the absence of the conditions stated in Article 25 of the Labor Act. Moreover, according to the dissenting vote, the expression of ‘with exception of situations that would not reasonably be stemmed from the employer’ regulated by Contract no 158 is not consciously included in the Labor Act. The will of the legislator protects the employee in terminations due to reasons of health.
III. CONCLUSION
Article 19 of the Labor Act regulates the procedure of termination with a notification period and this article should not be understood as requiring the defense of an employee in any termination by an employer. As Article 19 is expressly excluded in the last paragraph of Article 25 of the Labor Act, which regulates termination for just cause by the employer, it cannot be expected to receive a defense from an employee in terminations for just cause. At the same time, the reason that Article 19 of the Labor Act reserves only paragraph (II) of Article 25 is that both provisions are related to the conduct of the employee. Additionally, termination of an employment contract for just cause due to reasons of health refers to the inadequacy of the employee. There is no assessment concerning performance. Taking all of these into account, decision numbered 2017/9 E. 2018/10 K. of CCGATUJ rules that it is not necessary to take a defense from an employee in terminating their employment contract for just cause due to reasons of health. Thus, unification of conflicting judgements in relation to the issue have been provided. With this decision we think that the differences between the literature and practice are felicitously resolved.
BIBLIOGRAPHY
CENTEL, TANKUT İş Güvencesi. İstanbul: Legal Yayıncılık, 2012.
ÇELİK, NURİ VE NURŞEN CANİKLİOĞLU AND TALAT CANBOLAT, İş Hukuku Dersleri. Ankara: Beta Yayın Basım Dağıtım, 2017.
EKONOMİ, MÜNİR, “Hizmet Akdinin Feshi ve İş Güvencesi, Çimento İşveren Dergisi”, C.17, 2003 https://www.ceis.org.tr/ dergiDocs/isGuvencesi.pdf (Access Date: 24.06.2019).
ERDAĞ, NEVZAT, İş Hukukunda Önemli Konular, Ankara: Bilge Basım Yayınevi, 2019.
GÜLVER, ENDER, “İş Sözleşmesinin İşçinin Savunması Alınmaksızın Sağlık Sebeplerine Dayanılarak İşverence Derhal Feshi ve İşe İade”, İÜHFM Özel Sayı, Prof. Dr. Fevzi Şahlanan’a Armağan, C.I, 2016, https://dergipark.org.tr/download/articlefile/315302 (Access Date: 24.06.2019).
KILIÇOĞLU, MUSTAFA VE KEMAL ŞENOCAK, İş Kanunu Şerhi, İstanbul: Legal Yayıncılık, 2013.
MOLLAMAHMUTOĞLU, HAMDİ VE MUHİTTİN ASTARLI, ULAŞ BAYSAL, İş Hukuku. Ankara: Turhan Kitabevi, 2014.
SÜZEK, SARPER, İş Hukuku. Ankara: Beta Basın Yayın Dağıtım, 2018.
TUNÇOMAĞ, KENAN VE TANKUT CENTEL, İş Hukukunun Esasları. İstanbul: Beta Yayın Basım Dağıtım, 2018.
YILDIZ, HASAN Çalışma Hayatı ve İş Sağlığı ve Güvenliği ile ilgili ILO Sözleşmeleri. İstanbul: Aristo Yayınevi, 2017.
DECİSİONS OF COURT OF CASSATİONS Civil Chamber No 22 of the Court of Cassation., D.16.01.2012, N.2011/5117, E. 2012/61. Civil Chamber No 22 of the Court of Cassation., D. 13.07.2012, N.2012/2321, E. 2012/16839. Civil Chamber No 22 of the Court of Cassation., D. 11.06.2013, N.2013/10035, E. 2013/14132. Civil Chamber No 22 of the Court of Cassation., D. 18.05.2015, N.2015/12892, E. 2015/17747. Civil Chamber No 9 of the Court of Cassation., D. 24.11.2015, N. 2015/23385, E. 2015/33398. Civil Chamber No 9 of the Court of Cassation., D.16.12.2015, N. 2015/24151, E. 2015/35707. Civil Chamber No 9 of the Court of Cassation., D. 21.01.2016, N. 2015/25334, E. 2016/1561. Civil Chamber No 9 of the Court of Cassation., D. 31.10.2016, N. 2015/35476, E. 2016/18795. Civil Chamber No 9 of the Court of Cassation., D. 06.12.2016, N. 2016/928, E. 2016/21705. Civil Chamber No 9 of the Court of Cassation., D. 23.01.2017, N. 2016/2983, E. 2017/510. Decision of Court of Cassation General Assembly on The Unification of Judgments, D. 19.10.2018, N. 2017/9, E. 2018/10.
FOOTNOTE
1 Kenan TUNÇOMAĞ/ Tankut CENTEL, İş Hukukunun Esasları (İstanbul: Beta Basım Yayım Dağıtım, 2018), p. 213; Ender GÜLVER, “İş Sözleşmesinin İşçinin Savunması Alınmaksızın Sağlık Sebeplerine Dayanılarak İşverence Derhal Feshi ve İşe İade”, İÜHFM Özel Sayı, Prof. Dr. Fevzi Şahlanan’a Armağan, V.l, (2016) p. 407.
2 Court of Cassation 9. C.C., D. 24.11.2015, 23385/33398; Court of Cassation 22. C.C., D. 18.05.2015, 12892/17747.
3 Sarper SÜZEK, İş Hukuku (Ankara: Beta Basın Yayım Dağıtım, 2018), p. 231.
4 SÜZEK, p. 246.
5 SÜZEK, p. 246.
6 SÜZEK, p. 239.
7 Court of Cassation GATUJ, D. 19.10.2018, N. 2017/9, E. 2018/10.
8 Nuri ÇELIK, Nurşen CANIKLIOĞLU and Talat CANBOLAT, İş Hukuku Dersleri (Ankara: Beta Basım Yayın Dağıtım, 2017) p. 419.
9 Süzek, p. 517.
10 Court of Cassation GATUJ, D. 19.10.2018, N. 2017/9, E. 2018/10.
11 Hamdi MOLLAMAHMUTOĞLU, Muhittin ASTARLI and Ulaş BAYSAL, İş Hukuku (Ankara: Turhan Kitabevi, 2014), p. 902.
12 TUNÇOMAĞ/CENTEL, p. 203.
13 ÇELIK / CANIKLIOĞLU/CANBOLAT, p. 419.
14 Court of Cassation GATUJ, D. 19.10.2018, N. 2017/9, E. 2018/10.
15 Nevzat ERDAĞ, İş Hukukunda Önemli Konular (Ankara: Bilge Yayınevi, 2019), p. 29.
16 “Job security aims to secure the employee’s job. Security means that the employee cannot be fired arbitrarily by the employer. In the other words, job security protects the employee against termination. Thus, termination of the employment contract of the employee who has job security must be based on valid reasons. Accordingly, under Article 18 of the Labor Act, an employee has job security: * who is employed in an establishment with thirty or more workers, * who works for an indefinite period * who meets a minimum seniority of six months and does not acts as an employer’s representative and his assistants who authorise to manage the entire enterprise” Tankut CENTEL, İş Güvencesi (İstanbul: Legal Yayıncılık, 2012), p. 10.
17 TUNÇOMAĞ/CENTEL, p. 211.
18 Mustafa KILIÇOĞLU/Kemal ŞENOCAK, İş Kanunu Şerhi (İstanbul: Legal Yayıncılık, 2013), p. 261.
19 Under Article 17 of the Labor Act notice periods are regulated as follow: “The contract shall then terminate: a) in the case of an employee whose employment has lasted less than six months, at the end of the second week following the serving of notice to the other party; b) in the case of an employee whose employment has lasted for six months or more but for less than one-and-a-half years, at the end of the fourth week following the serving of notice to the other party; c) in the case of an employee whose employment has lasted for one-and-a-half years or more but for less than three years, at the end of the sixth week following the serving of notice to the other party; d) in the case of an employee whose employment has lasted for more than three years, at the end of the eighth week following the serving of notice to the other party.”
20 KILIÇOĞLU/ŞENOCAK, p. 261.
21 Court of Cassation GATUJ, D. 19.10.2018, N. 2017/9, E. 2018/10; A. Eda MANAV, İş Hukukunda Geçersiz Fesih ve Geçersiz Feshin Hüküm ve Sonuçları (Ankara: Turhan Kitabevi, 2009), p. 78.
22 MOLLAMAHMUTOĞLU,/ASTARLI/BAYSAL, p. 989.
23 SÜZEK, p. 571.
24 SÜZEK, p. 568.
25 ÇELIK, CANIKLIOĞLU/CANBOLAT p. 529; KILIÇOĞLU/ŞENOCAK, p. 542; MOLLAMAHMUTOĞLU/ ASTARLI/BAYSAL, p. 1029.
26 TUNÇOMAĞ/CENTEL, p.213; SÜZEK, p.602; ÇELIK/CANIKLIOĞLU/ CANBOLAT, p. 529.
27 GÜLVER, p. 407.
28 MOLLAMAHMUTOĞLU/ASTARLI/BAYSAL, p. 1029.
29 Münir EKONOMI, “Hizmet Akdinin Feshi ve İş Güvencesi”, Çimento İşveren Dergisi, V.17, (2003) p. 14.
30 KILIÇOĞLU/ŞENOCAK, p. 542.
31 SÜZEK, p. 679.
32 SÜZEK, p. 705.
33 SÜZEK, p. 702.
34 See the sub-heading numbered 3.2.
35 Court of Cassation 9. C.C., D. 24.11.2015, 23385/33398.
36 MOLLAMAHMUTOĞLU/ASTARLI/BAYSAL, p. 838.
37 SÜZEK, p. 681.
38 Court of Cassation 9. C.C., D. 24.11.2015, N. 2015/23385, E. 2015/33398; Court of Cassation 9. C.C., D.16.12.2015, N. 2015/24151, E. 2015/35707; Court of Cassation 9. C.C., D. 21.01.2016, N. 2015/25334, E. 2016/1561; Court of Cassation 9. C.C., D. 31.10.2016, N. 2015/35476, E. 2016/18795; Court of Cassation 9. C.C., D. 06.12.2016, N. 2016/928, E. 2016/21705; Court of Cassation 9. C.C., D. 23.01.2017, N. 2016/2983, E. 2017/510.
39 Court of Cassation 22. C.C., D.16.01.2012, N.2011/5117, E. 2012/61; Court of Cassation 22. C.C., D. 13.07.2012, N.2012/2321, E. 2012/16839; Court of Cassation 22. C.C., D. 11.06.2013, N.2013/10035, E. 2013/14132; Court of Cassation 22. C.C., D. 18.05.2015, N.2015/12892, E. 2015/17747.
40 Court of Cassation GATUJ., D. 19.10.2018, N. 2017/9, E. 2018/10.
41 SÜZEK, p. 602.
42 SÜZEK, p. 708.
43 SÜZEK, p. 708.
44 SÜZEK, p. 708.
45 Court of Cassation GATUJ., D. 19.10.2018, N. 2017/9, E. 2018/10.
