ABSTRACT
When drafting the employment contract between the employee and the employer, some provisions are added to the contract in order to limit the parties to the termination of the contract. When terminating employment contracts, it becomes possible for both parties to impose certain limitations in this direction and to ensure that the parties fulfill their obligations by virtue of the penal clause institution. With the provision of a penal clause added to employment contracts, unfair termination of employment contracts in particular is subject to sanction. In this study, the legal nature and validity conditions of the penal clauses added to the employment contracts are examined.
I. INTRODUCTION
Mutual obligations in the stipulated contracts, the parties must fulfill their obligations within the framework of the conditions set out in the contract and in accordance with the law. However, there may be situations when one of the parties does not fulfill its contractual obligations for various reasons. Some conditions are placed in the contracts to refer to in cases where the counterparty does not fulfill its contractual responsibility, aimed at guaranteeing the receivable. In practice, one of such conditions is a penal clause. The penal clause is an institution that is frequently applied in our law in order to ensure that the parties secure their mutual performances. The penal clause has a kind of nature of guarantee with the aim of encouraging the counterparty to act in accordance with its obligation. In cases where a penal clause is decided, the obligation arises to pay the counterparty the amount determined by the parties, regardless of the damage caused by the act of the party that does not perform its obligation at all or as required, contrary to the obligation.
There is no provision in the Labor Code numbered 4857 (“Labor Code”) regarding the penal clauses in employment contracts, however the relevant provisions of the Turkish Code of Obligations numbered 6098 (“TCO”) are applicable in employment contracts. Due to the structure of labor law and the principle of interpretation in favor of the employee, the regulations in the TCO are not directly applied to labor law, and the rules regarding the penal clause in the doctrine and judicial decisions are adapted in accordance with the purpose of labor law1. Therefore, judicial decisions on labor law are different from the law of obligations. As a matter of fact, in order not to cause inequality between the parties, the provisions of the TCO regarding the penal clause should be interpreted in light of the principles of labor law2.
II. THE CONCEPT OF PENAL CLAUSE
The concept of the penal clause, which can be expressed as an institution that forces the debtor to perform, is regulated between Articles 179-182 in the TCO, and there is no definition of the penal clause in the relevant Articles. First of all, it should be noted that the penal clause is an institution that is quite common in contracts containing performances with high economic value. In the doctrine, it is stated that the penal clause is regulated in employment contracts for the purpose of assurance, for the purpose of penalty, or for the purpose of compensation. In Supreme Court precedent and doctrine, a penal clause refers to an existing obligation, failure to perform or to be paid in the event of an incompletely carried out contract with a monetary value, the creditor if the debtor agrees to pay a debt that is never available or is not performed properly, and a legal act or process with economic value that the debtor has determined the creditor must accept payment for in the event of a violation of the obligation agreement. The penal clause that is expressed is a secondary performance which has a fiscal value to be paid in cases of failure to perform or defective performance of the existing obligation, a performance determined with a legal transaction3 which has economic value in which the debtor has undertook to pay to the creditor and an agreement4 on the penalty that the debtor agrees to pay to the creditor in case of violation of the obligation in doctrine and the decisions5 of the Supreme Court.
The penal clause refers to a separate performance from the principal obligation and gives the creditor the right to receive a certain amount without having to bear the burden of proving the loss. Therefore, the penal clause must have an economic value. A penal clause is a performance related to the principal obligation, which has a secondary nature, and the validity of the penal clause depends on the validity of the principal obligation. As a result of the secondary nature of the penal clause, if the penal clause is invalid for any reason, there will be no mention of its impact on the validity of the principal obligation6. Therefore, even if the penal clause is invalid, the principal obligation will remain valid and the penal clause will become due if the contractual obligation is not duly fulfilled.
Authors7 who accept that the penal clause has the nature of a penalty, argue that if the debtor does not fulfill his/ her debt, he/ she will feel under the threat of punishment and that the debtor will perform his/ her debt flawlessly under this threat. Another opinion argues that the penal clause is in the nature of compensation and that an amount has been agreed upon in advance for the damages that will arise during the performance of the contract8. In addition, there are also authors9 who believe that the penal clause is a unique institution and therefore it is regulated under a separate heading in the TCO.
A. The Elements of The Penal Clause
The penal clause is stipulated in order to serve to ensure the complete and flawless fulfillment of the principal obligation. The elements required for the penal clause to be valid can be expressed as the existence of the principal obligation, the existence of performance independent out of the principal obligation, and the determination of this obligation by legal transaction10. The acceptance of the penal clause as legally valid depends on the fact that it is based on a valid principal obligation. In other words, in cases where the principal obligation is invalid due to reasons such as defective intention or impossibility, it is not possible for the penal clause to come into force. Principle obligation may arise from a tort, contract, or law.
The penal clause is a contract and it is subject to the basic rules that contracts are subject to in accordance with the law of obligations. The penal clause must not be contrary to the law, morality, and mandatory provisions11. While regulating the penal clause, it should be kept in mind that it will not be possible to agree on a penal clause for a obligation that has already been fulfilled. Although there is no formal requirement regarding the validity of the penalty clause, the fact that the agreement is made in written form will be important in terms of proving the penalty clause. However, it should be noted that if the principal obligation is subject to a form requirement, it is a condition of validity that the penal clause is made in accordance with this condition. Although the penal clause must have an economic value, such a condition cannot be mentioned for the principal obligation. As a matter of fact, this situation is regulated in the TCO as “Even if the creditor has not suffered any damage, the agreed penalty must be fulfilled”12. Due to the necessity of the penal clause to carry an economic value, the regulations that limit or eliminate a right do not constitute the subject of the penal clause. In summary, it should be possible to follow up the performance decided as a penal clause through forced execution.
The validity of the penal clause is subject to the validity of principle obligation, and the objection defense that can be asserted against the principal obligation can be assrted against the penalty clause13. This issue should also be taken into consideration when analyzing the elements of the penal clause. It can also be said that the penal clause can only be subject to a legal transaction between the parties due to the fact that the testamentary dispositions are subject to their own regimes.
The parties can freely determine the amount of the penal clause. However, it should be noted that pursuant to Article 182 of the TCO, the judge has the authority to reduce the amount of penal clause ex officio14. If the amount of the penal clause agreed by parties is demed excessive by the judge, the amount determined by the judge will be paid, not the full amount of the penal clause.
Another feature that distinguishes the penal clause from other institutions in terms of compensation for damage is that the existence of any damage is not sought in order to claim the penal clause.
III. PENAL CLAUSE IN EMPLOYMENT RELATIONS
A. General
The parties to the employment contract may include some penal clauses in their employment contracts against the violation of the provisions of the contract by the other party. With penal clauses, the parties may force each other to comply with the contract and guarantee themselves in a possible dispute. Although the penal clauses in employment contracts generally aim to secure the expectations of the employer from the employee, these regulations may also have consequences in favor of the employee in some cases. Penal clauses in employment contracts are mostly intended to prevent a qualified employee from terminating his/her employment contract before the expiry of the term without just cause, to enable the employer to claim the training expenses incurred for the employee and to ensure that the employee complies with the non-competition agreement concluded with the employee15. In employment contracts, penal clauses may also be agreed for the violation of the employee’s confidentiality obligation or the prohibition of side job. It should be noted that penal clauses may also be regulated in other sources regulating the employment relationship (internal regulations, etc.). The penal clause in other sources regulating the employment relationship is important within the framework of general terms and conditions.
As we have stated while explaining the elements of the penal clause, the existence of the principal obligation is necessary for the existence of the penal clause. Therefore, the penal clause will not become due until the actual employment relationship is established between the parties to the contract. In testing periods of employment contracts, in order for the penal clause to become due, the probationary period agreed upon by the contract must expire. In addition to all these, in order for the penal clause to be valid, the penal clause stipulated against the employee or employer in the employment contract should not be a penal clause that eliminates the essence of the right to termination. As a matter of fact, the Supreme Court also states that the penal clauses that are determined in a way that eliminates the essence of a right will be invalid16.
B. Condition of The Stipulating for Both Parties of Penal Clause and Its Critics
The legislator has stipulated a regulation taking into account the economically weak position of the employee against the employer during the establishment of the employment contract and the application of the Supreme Court during the Turkish Code of Obligations numbered 818. With Article 420 of the TCO, it has been decided that the penal clause placed only against the employee in the service contracts is invalid. The penal clause provisions in the TCO should be evaluated within the scope of the “principle of interpretation in favor of the employee” adopted by the Supreme Court.
Accordingly, penal clauses in employment contracts should be regulated bilaterally for the employee and the employer (principle of reciprocity) and the penal clause agreed against the employee should not be more than the one agreed against the employer. In addition, in the event of an inequality in the bilateral penal clause against the employee, the penal clause is not completely invalid, but the liability of the employee cannot exceed the amount and circumstances for which the employer is responsible. As explained above, Article 420 of the TCO explicitly regulates that penal clauses in employment contracts shall be invalid only for the employee. The exceptions to this invalidity are the unilaterally agreed penal clause against the employee for the reimbursement of the expenses incurred by the employer for the training of the employee and the penal clause added to the contract in return for the employee’s non-competition and breach of confidentiality17.
There are those who criticize the provision prohibiting the imposition of a unilateral penal clause against the employee18 as well as those who defend it in the doctrine19. According to the opinion criticizing the regulation, the principle, which became a provision of law with Article 420 of the TCO, is correct in terms of contractual provisions that provide for equivalent liability to the parties when evaluated within the framework of modern labor law principles. However, not every right and obligation contained in employment contracts must necessarily be of equal value. The fact that when rules that cannot be applied concretely become the mandatory provision of the law are criticized in the doctrine, as it may lead to unfair results20.
In the event that the employment contract is terminated unfairly by the employee or the employer and there is a provision in the employment contract that the party who termiates the contract unfairly will pay a penal clause, but there is no provision in the contract that a penal clause will be paid in case of rightful termination of the contract, this situation will find an applicaton area in favor of the employee. This is because if the penal clause provisions are agreed unilaterally, they are not considered valid if they are against the employee21.
C. The Penal Clause Imposed to Prevent the Termination of the Indefinite-Term Employment Contract by the Parties
Termination of an employment contract is divided into two categories: indefinite termination and immediate termination for just cause. While indefinite termination is only valid for indefinite-term employment contracts, immediate termination is valid for both indefinite-term and fixed-term employment contracts. In employment contracts, the right of termination of the employee and the employer may be limited by penal clauses to be included in the contracts in a way that does not violate the essence of the right. However, the validity of this limitation depends on the absence of justified reasons for the termination of the employment contract. Provisions containing penal clauses in both fixed-term and indefinite-term employment contracts are valid as a rule in the presence of the principle of reciprocity22.
The right of the parties to terminate the employment contract is regulated in Article 431 of the TCO as mandatory. As a result of the mandatory regulation of the right of termination, the employee or employer will not be able to voluntarily waive the right of termination before the termination right arises. Although the main principle in labor law is to conclude contracts for an indefinite term, employment contracts may be concluded for a definite or indefinite term23. Article 11 of the Labor Law stipulates the principles for concluding a fixed-term employment contract and an indefinite-term employment contract. An indefinite-term employment contract signed without a fixed term can be terminated at any time with the agreement of the parties in accordance with the principle of freedom of work and contract regulated in the Constitution.
In both fixed term employment contract and indefinite-term employment contracts, penal clauses are valid as a rule, provided that the principle of reciprocity exists. However, in order for the penal clause to be valid, the employment contract between the parties must be for a fixed term. It is also possible to include the same provisions in minimum term employment contracts24.
D. The Penal Clause Imposed to Prevent the Termination of the Fixed-Term Employment Contract by the Parties
As fixed-term employment contracts are not subject to job security provisions as a rule, it is observed that the importance of fixed-term employment contracts has increased and employers have started to prefer fixed-term contracts more. In labor law, penal clause is also commonly agreed as a sanction to be paid in case of termination of fixed-term employment contracts without just cause25.
Since the main purpose of the penal clause is to create a deterrent effect, it is more likely to be seen especially in fixed-term employment contracts.
In order to be able to mention a fixed-term contract in accordance with the Labor Code, it is necessary to have one of the reasons specified in Article 11 of the Labor Code. These states are situations that depend on objective conditions, such as the completion of a certain job, or the emergence of a certain phenomenon.
In fixed-term employment contracts, penal clauses may be stipulated, provided that they do not contradict the mandatory rule in Article 420/1 of the TCO. It should be noted that the principle that only penal clauses imposed against the employee shall be deemed invalid is also valid here. The purpose of regulating this clause in fixed-term employment contracts is the need to have a certain sanction against the wrongful termination before the expiry of the term26.
In the event that a fixed-term employment contract is terminated before its expiry without a justified reason, the legal consequences of wrongful termination will arise and the employee will be able to claim the wage amount for the remaining period as compensation. However, it should be noted that in accordance with the established jurisprudence of the Supreme Court; despite the existence of a written employment contract between the parties, if the fact of work has not been realized and no actual employment relationship has been established, the employee cannot claim compensation in the amount of the remaining period wage27.
Unlike indefinite-term employment contracts, in fixed-term employment contracts, it is possible to decide that the parties will pay a penalty only in case of unfair termination of the employment contract28. In fixed-term employment contracts, it is not possible for the parties to exercise the right of termination by complying with the notice period. For this reason, it cannot be mentioned that such an arrangement to be put into fixedterm employment contracts also touches the essence of the parties’ right to termination29. This regulation limits the parties for the duration of a fixed-term employment contract. During the period of the fixed-term employment contract, the penal clause will have to be paid in case of termination of the employment contract by the parties, even if there are valid reasons, without a justifiable reason.
Another issue that needs to be evaluated regarding the penal clause in case of unfair termination of fixed-term employment contracts is whether the employer should pay the penal clause if the employment contract between the parties is accepted as indefinite due to the absence of objective conditions in accordance with Article 11 of the Labor Law. The General Assembly of the Supreme Court on the Unification of Case Law has reached the following decision on the issue: “The fact that the fixed-term employment contract is characterized as an indefinite term due to the lack of objective conditions should not lead to the invalidity of the contractual wills of the parties regarding the penal clause. In light of the explanations made, the penal clause which is stipulated in the contract by the employee and the employer to guarantee not to terminate the employment contract without a justifiable reason, during the period determined by them in fixed-term employment contracts shall maintain its validity to be limited with the period decided, in the event that is accepted indefinite-term employment contracts since the contract does not have the objective conditions of a fixed-term employment contract”30.
According to the opinion expressed in the decisions of the Supreme Court31 and in which we also agree, the conclusion of an employment contract for a fixed or indefinite period should not prevent the regulation of a penal clause in the employment contract. In addition, we are of the opinion that it is against the good faith for the employer to unlawfully claim that the fixed-term employment contract established between the parties is of indefinite duration.
The provision of Article 179/1 of the TCO is as follows: “If a penalty has been stipulated for the non-performance of a contract at all or not properly, the creditor may request the performance of either the debt or the penalty, unless otherwise understood from the contract”. Pursuant to the relevant provision, in case of unfair termination of the employment contract, one of the parties must have clearly agreed on this issue in the employment contract in order to claim compensation in the number of wages for the remaining period (balance period wage) and the penal clause (penalty added to performance) together within the framework of Article 438 of the TCO32.
In a decision of the Supreme Court regarding the claimability of compensation in the amount of the remaining period wage and penal clause in the event of unfair termination of fixed-term employment contracts, the Supreme Court concluded that the plaintiff should be given time to exercise his/ her right of choice on the grounds that there is no explicit provision in this direction in the employment contract in accordance with the Article 179 of TCO and therefore joint claimability is not possible33. The Supreme Court rejected the ruling on the joint execution of these two institutions in yet another decision on the grounds that it would cause repetitive judgement based on the joint performance of these two institutions34.
Regarding the validity of the penalty clause in a fixed-term employment contract that turns into an indefinite-term contract, the Supreme Court concluded that the penalty clause agreed upon by the parties will be valid for the period of time they agreed upon, if it turns into an indefinite-term employment contract35. Again, the Supreme Court did not consider it appropriate for one of the parties to pay only the penal clause and not to pay the compensation in the amount of the remaining period wage in the event that the fixed-term employment contract is terminated unfairly by one of the parties before the expiry date; in this case, the Supreme Court concluded that the penal clause has lost its function and stated that the compensation for the remaining period wage is the result of the mandatory regulation of the law and that it cannot be agreed that only the penal clause will be paid and the remaining period wage will not be paid36.
E. Penal Clause In Employment Contracts For Training Expenses
As stated in the established decisions of the Supreme Court, the training provided to the employee by the employer is for the benefit of the employer as the employee contributes to the production of goods and services in the workplace, and the employee becomes more qualified and can find a job more easily in the future because of the training provided. For this reason, it is possible to agree that the employee will work for a certain period of time in return for the training provided at the employer’s expense. The fact that the employee works for the employer for a certain period of time in return for the training provided is considered within the scope of the duty of loyalty to the employer. The amount of labor time required in exchange for the training must also be reasonable given its nature and price. On the other hand, the expenses of the trainings that must be provided to the employee within the scope of occupational health and safety measures cannot be requested from the employee37.
The costs expended by the employer in exchange for the training provided to the employee must be particular to that employee and must be supported by written records in the event of a future disagreement. The amount per employee of the expenses in curred by the employer due to collective trainings is determined by dividing by the number of employees receiving training in the same period. The employee shall not be liable for the expenses that cannot be determined to be related to the training provided to the employee. As a matter of fact, in possible disputes, the burden of proof regarding the training provided to the employee and the training expenses incurred belongs to the employer. The employer can only claim from the employee for training expense that can be documented and that have actually been incurred. The Supreme Court ruled in one of its decisions38 on the subject as follows: “If the plaintiff proves that he/she has made expenses as training expenses, it is necessary to award such training expenses to the defendant by taking into account and proportioning the duration of the defendant employee’s employment and the number of beneficiaries of the training”. In practice, employees are often asked to provide a written undertaking that they will work for a certain period of time in return for the training provided by the employer and that if they terminate their employment contract unjustly or if their employment contract is terminated by the employer unjustly, they will pay the employer a certain amount of penalty or the entire training expenses in return for the training provided to them, or a provision to this effect is added to the employment contract, or a “work-for-training protocol/ contract” is signed separately from the employment contract and these arrangements are agreed between the parties.
Although unilateral penalty clauses against the employee are considered invalid, a penalty clause for training is an exception. However, even if a penalty clause is set or a provision is made that the employee will pay the full amount of the training expenses, the courts, in accordance with the established case law of the Supreme Court, determine the training expenses actually incurred by the employer and, taking into account how much of the committed working time the employee has worked, decide to collect the remaining amount after making a discount by establishing a ratio according to the periods that the employee has worked and should have worked, instead of the full amount of the training expenses incurred by the employer on behalf of the employee. This is because, if the employee has worked for a part of the time he/ she is obliged to work after the training, he/ she has contributed to the employer in this regard. In the event that the employee has worked for the entire period for which he is obliged to work, the employer cannot claim training expenses.
If the parties agree on a penal clause in the employment contract in return for training expenses, the employer remains liable for the consequences of the justified termination if the employee terminates the contract for just cause, but it is not possible for the employer to claim the penalty clause for the agreed training expenses from the employee who terminates the contract for just cause. Even if a contract stipulates that the penalty clause will be paid unconditionally, this record should only be understood as limited to cases of termination for just cause. Other wise, the parties’ freedom of termination will be prejudiced. In any case, the parties’ right of rightful termination cannot be restricted and their waiver of this right is not considered valid39.
In the event that the employment contract is terminated by the employer within the committed period based on a reason within the scope of “situations that do not comply with the rules of morality and goodwill etc.” listed in Article 25/2 of the Labor Law, the employer will be able to claim the expenses incurred in return for training from the employee; otherwise, in the event that the employment contract is terminated by the employer in accordance with Articles 17 and 18 of the Labor Law or in accordance with Article 25/1, 25/3 or 25/4 of the Labor Law, the employer will not be able to claim the expenses incurred in return for training from the employee.
F. Penal Clause for Breach of Non-Competition Agreement
The non-competition obligation of the employee arises in two different ways. The first one is the non-competition of the employee with his/ her employer during the term of the employment contract, which is related to the employee’s duty of loyalty. The second is the non-competition obligation arising from the competition agreement, which prohibits the employee from competing with his employer after the termination of the employment contract. Violation of the non-competition obligation by the employee during the employment contract is within the scope of the conduct incompatible with integrity and loyalty regulated under Article 25/1 (e) of the Labor Law and constitutes a just cause for termination for the employer. The non-competition obligation regulated under the TCO is fulfilled after the employment contract is terminated.
The non-competition obligation fulfilled after the termination of the employment contract stems from the employment contract and the penal clause is regulated here to ensure compliance with the non-competition obligation40. A non-competition clause may be included in the employment contract regardless of whether it is a fixed or indefinite term contract, or a partial or full-term employment contract41. However, it should be noted that the prohibition of competition cannot be determined by internal workplace regulations42. In addition, the employer may not include a provision in the employment contract stating that he reserves the right to impose a non-competition clause43.
Pursuant to Article 444 of the TCO, in order for the non-competition clause to be valid, the employee must be in a position to have information about trade secrets or the employer’s business44, the employee must have the opportunity to obtain information about the employer’s customers45, there must be a possibility of serious damage46 to the employer, and the non-competition clause in the contract must not harm the economic future of the employee.
It should be noted that the non-competition agreement between the employee and the employer, which is separate from the employment contract, or the non-competition clause included in the employment contract must be subject to certain limitations47. Pursuant to Article 445/1 of the TCO, “The non-competition clause may not contain inappropriate restrictions in terms of place, time and type of the work, which may harm the economic future of the employee, and the duration of the prohibition may not exceed two years, except for special conditions”. However, the judge may limit the scope or duration of the non-competition clause if he deems its excessive, taking into account all the circumstances and the counter-performance that the employer may have undertaken. One of the consequences of breach of the non-competition agreement is the payment of a penal clause by the employee. Pursuant to Article 446/1 of the TCO, the employee who violates the non-competition clause is obliged to compensate all damages incurred by the employer. However, it is extremely difficult to prove the damages incurred due to non-competition. Due to the existing difficulty of proof, penal clauses are attached to the non-competition clause in the employment contract concluded by the Parties. Pursuant to Article 446/2 of the TCO, “If the breach of the prohibition is subject to a penal clause and there is no contrary provision in the contract, the employee may be released from the non-competition obligation by paying the stipulated amount; however, the employee must compensate for the damage exceeding this amount”. However, it should be noted that if the employer proves that the damage caused by the employee is a damage that is not covered by the penal clause agreed in the contract and that the employee is at fault, the employer may claim the excessive damage.
On the other hand, in addition to the penal clause and the payment of additional damages that may arise, the employer may also demand the termination of the non-competitive behavior, provided that it is expressly reserved in writing in the contract, if the importance of its interests that are violated or threatened and the behavior of the employee justify it. In order for the penal clause regulated in the non-competition agreement to become due and payable, it is sufficient to have breached the obligation. If the penal clause is excessive, the judge may automatically reduce the amount of the penal clause in accordance with Article 182 of the TCO.
Article 420 of the TCO clearly regulates that the penal clause in employment contracts will be invalid only for the employee, and the penal clause added to the contract in case the employee violates the non-competition clause constitutes an exception to this invalidity48. Since the penal clause may be stipulated only for the employee in case of violation of the non-competition clause in employment contracts, it is usual that the penal clause is only in question for the employee, and this alone does not render the penal clause invalid. However, in the event that the non-competition agreement or record is invalid, the penal clause will also be invalid49.
Finally, we would like to point out that pursuant to Article 13 of the Press Labor Law, non-competition agreements with journalists are invalid. There is no separate provision on non-competition in the Maritime Labor Law.
G. Reduction of Penalty Clause
Article 182 of the TCO stipulates that the parties may freely determine the amount of the penal clause, but the judge may reduce the penal clause ex officio if he deems it excessive. The judge’s power to reduce the penal clause, which he deems excessive, is conditional upon the filing of a lawsuit. According to the abrogated Code of Obligations, the debate on whether the judge has the power to set off without a claim has lost its importance with the TCO. This is because the judge is no longer bound by the request of the parties in exercising this power, and has the opportunity to decide ex officio50.
Certain conditions are stipulated for the penal clause to be set off by the judge. These conditions are the existence of a due penal clause, the existence of a valid contract containing a due penal clause, the amount of the penal clause being excessive and the debtor’s failure to fulfill its obligation. Some criteria that may be taken into account in order for the penal clause to be deemed excessive may be the interests of the creditor, the degree of fault of the debtor, the amount of damage caused by the breach of obligation and the economic situation of the parties. At the same time, the claimability of the penalty clause must also continue. In some decisions of the Supreme Court, which may be considered inaccurate regarding the judge’s power of compensation, a penal clause was agreed for the underpayment of the wage by the employer in a fixed-term employment contract, and while determining the amount of the penal clause to be paid to the employee for underpayment of the wage, a proportion was made according to the time the employee worked and did not work, but such an application is not included in the law and it should be said that the judge’s power of compensation can only be exercised while exercising the power of reduction regarding the penal clause that the judge finds excessive51.
IV. CONCLUSION
A penal clause is an act of economic value that arises in the event that the debtor performs the obligation incompletely or not at all. Although it is established in connection with a valid obligation, it has the characteristics of an independent performance. In the event that the contractual obligation is not fulfilled at all or as required, the penal clause, which is an ancillary debt that depends on the contractual debt, becomes due and payable.
The penal clause may be agreed for all types of debt relations, and the condition for the penal clause to be agreed is that the contractual obligation is valid and the obligation has not been fulfilled when the penal clause is agreed.
Penal clauses in employment contracts are intended to prevent the termination of employment contracts of qualified workers, to ensure that the training expenses incurred for the worker can be claimed from the worker, and to ensure that the worker complies with the non-competition agreement.
In order for the penal clause to be valid, the penal clause stipulated against one of the parties in the employment contract should not be of a nature that eliminates the essence of the right of termination and the penal clause should be mutual. In addition, in order for the penal clause to be claimed by one of the parties, the conditions under which the penalty can be claimed should be clearly regulated in the contract.
The validity of penal clauses in both indefinite-term and fixed-term employment contracts depends on compliance with the “principle of reciprocity”. In order for the penal clause in fixed-term employment contracts to be valid, first of all, the service contract between the employee and the employer must be a contract based on an objective reason within the framework of the Labor Law.
Article 420 of the TCO clearly regulates that the penal clause in employment contracts shall be invalid only for the employee, and the penal clause unilaterally agreed against the employee for the reimbursement of the expenses incurred by the employer for the training of the employee and the penal clause added to the contract in return for the employee’s non-competition and breach of confidentiality are the exceptions to this invalidity. If the penal clause is excessive, the judge may automatically reduce the amount of the penal clause in accordance with Article 182 of the TCO.
BIBLIOGRAPHY
ALİ GÜZEL, “Belirli Süreli İş Sözleşmesinin Hukuki Nitelemesi- Haksız Feshe Bağlı Tazminat ve Cezai Şart’’, Çalışma ve Toplum Dergisi, V. 3, I. 73, 2022.
BARIŞ KARAKURT, İş Akdinin Fesih Hakkının Sözleşmelerle Sınırlandırılması ve Cezai Şart’, Yayımlanmamış Yüksek Lisans Tezi, Başkent Üniversitesi Sosyal Bilimler Enstitüsü Özel Hukuk Anabilim Dalı, Ankara, 2019.
ERDEM ÖZDEMİR, “İş Hukukunda Eğitim Giderleri Karşılığı Öngörülen Cezai Şart’’, Çalışma ve Toplum Dergisi, I. 1, 2005.
EROL CANSEL/ ÇAĞLAR ÖZEL, Türk Hukuku’nda Ceza Koşulu, journal.yasar.edu.tr/wp-content/uploads/2014/01/19-
E.CANSEL-Ç.-ÖZEL.pdf (Date Accessed: 30.10.2022). FİLİZ KOZAK, “Yargıtay Kararları Işığında İş Sözleşmesinde Eğitim Giderleri Karşılığı Kararlaştırılan Cezai Şart Kayıtlarının Geçerliliği’’ (Yayımlanmamış Yüksek Lisans Tezi). Dokuz Eylül Üniversitesi Sosyal Bilimler Enstitüsü Kütüphanecilik Anabilim Dalı, İzmir, 2009.
GÜLSEVİL ALPAGUT, ‘’Türk Borçlar Kanunu’nun Hizmet Sözleşmesinin Devri, Sona Ermesi, Rekabet Yasağı, Cezai Şart ve İbranameye İlişkin Hükümleri’ Legal İSGHD, I. 31, 2011.
HAKAN KESER, “İş Sözleşmelerinde Kararlaştırılan Cezai Şartlara İlişkin Bir Değerlendirme’’, Sicil İş Hukuku Dergisi, I. 35, 2016.
İREM YAYVAK NAMLI, İş Hukukunda Cezai Şart, 1st Edition, İstanbul 2019. KENAN TUNÇOMAĞ, Türk Hukuku’nda Cezai Şart, İstanbul 1963.
KÜBRA DOĞAN YENİSEY, “İş Hukukunda Cezai Şart’’, Kadir Has Üniversitesi Yayınları, 2012.
M. POLAT SOYER, Rekabet Yasağı, Dokuz Eylül Üniversitesi Hukuk Fakültesi Yayınevi, Ankara, 1994.
NURİ ÇELİK/ NURŞEN CANİKLİOĞLU/ TALAT CANBOLAT, İş Hukuku, Beta Yayınevi, İstanbul, 2018.
ÖMER EKMEKÇİ, “Türk Borçlar Kanunu Tasarısının İş Sözleşmesine İlişkin Belli Başlı Hükümleri”, Sicil İş Hukuku Dergisi, I. 13, 2009.
ÖMER EKÇEKÇİ/ ESRA YİĞİT, Bireysel İş Hukuku Dersleri, On İki Levha Yayınevi, İstanbul 2021. SARPER SÜZEK, İş Hukuku, 22nd Edition, İstanbul 2020.
TALAT CANBOLAT, “Asgari Süreli İş Sözleşmelerinde Cezai Şart’’, İş ve Hayat, V. 3, I. 5, 2017.
FOOTNOTE
1 Talat Canbolat, “Asgari Süreli İş Sözleşmelerinde Cezai Şart’’, İş ve Hayat, V. 3, I. 5, Haziran 2017, p. 229.
2 Canbolat, p. 229.
3 Yargıtay 22. H.D., T. 16.02.2015, E.2013/32529, K.2015/4817.
4 Yargıtay 9. H.D., T. 10.099.2014, E.2012/33025, K.2014/26136.
5 Yargıtay 9. H.D., T. 01.10.2014, E.2012/34369, K.2014/28821.
6 Hakan Keser, “İş Sözleşmelerinde Kararlaştırılan Cezai Şartlara İlişkin Bir Değerlendirme’’, Sicil İş Hukuku Dergisi, I. 35, 2016, p. 19.
7 Kenan Tunçomağ, Türk Hukukunda Cezai Şart, İstanbul 1963, p. 21.
8 Erol Cansel/ Çağlar Özel, Türk Borçlar Hukukunda Ceza Koşulu, journal.yasar.edu.tr/wp-content/uploads/2014/01/19-E.CANSEL-Ç.-ÖZEL. pdf (Date Accessed: 30.10.2022).
9 Canbolat, p. 232.
10 Keser, p. 20.
11 Karakurt, p. 58.
12 Keser, p. 20.
13 Filiz Kozak, Yargıtay Kararları Işığında İş Sözleşmesinde Eğitim Giderleri Karşılığı Kararlaştırılan Cezai Şart Kayıtlarının Geçerliliği, Yayımlanmamış Yüksek Lisans Tezi, Dokuz Eylül Üniversitesi
Sosyal Bilimler Enstitüsü Kütüphanecilik Anabilim Dalı, İzmir 2009, p. 8.
14 Keser, p. 39.
15 Ömer Ekmekçi, “Türk Borçlar Kanunu Tasarısının İş Sözleşmesine İlişkin Belli Başlı Hükümleri”, Sicil İş Hukuku Dergisi, I.13, Mart 2009, p. 40.
16 Yargıtay 7. H.D., T. 02.04.2014, E. 2013/17692, K. 2014/7270.
17 Yargıtay 9. H.D., T. 06.01.2020, E. 2019/2294, K. 2020/40; Ömer Ekmekçi/ Esra Yiğit, Bireysel İş Hukuku Dersleri, On İki Levha Yayıncılık, İstanbul, 2021, p. 369.
18 Gülsevil Alpagut, “Türk Borçlar Kanunu’nun Hizmet Sözleşmesinin Devri, Sona Ermesi, Rekabet Yasağı, Cezai Şart ve İbranameye İlişkin Hükümleri”, Legal İSGHD, I. 31, İstanbul 2011, p. 954.
19 Kübra Doğan Yenisey, “İş Hukukunda Cezai Şart”, Kadir Has Üniversitesi Yayınları, İstanbul 2012, p. 29.
20 Ekmekçi, p.28.
21 Yargıtay 7. H.D., T. 09.06.2014, E.2014/4793, K.2014/12770.
22 Yargıtay 7. H.D., T. 09.06.2014, E.2014/4793, K.2014/12770.
23 Yargıtay 9. H.D., T. 23.01.2018, E.2017/27839, K.2018/1082.
24 Yargıtay 9. H.D., T. 23.03.2021, E. 2021/2786 K. 2021/6672.
25 Yargıtay 22. H.D., T. 23.02.10, E. 2008/11858, K. 2010/4640.
26 Canbolat, p. 230.
27 Yargıtay 22. H.D., T. 08.12.2014, E. 2013/25149, K. 2014/34675.
28 Yargıtay 22. H.D., T. 26.01.2016, E. 2015/39477, K. 2016/1128.
29 Sarper Süzek, İş Hukuku, 20. Baskı, İstanbul 2020, p. 744.
30 Yargıtay İBHGK, T. 08.03.2019, E. 2017/10, K. 2019/1.
31 Yargıtay 22. H.D., T. 22.11.2016, E. 2015/18939, K. 2016/26066.
32 Süzek, p. 747.
33 Yargıtay 22. HD, T. 27.03.2019, E. 2017/14212, K. 2019/6788.
34 Ali Güzel, “Belirli Süreli İş Sözleşmesinin Hukuki Nitelemesi-Haksız Feshe Bağlı Tazminat ve Cezai Şart”, Çalışma ve Toplum Dergisi, V. 3, I. 73, 2022, p. 1723.
35 Yargıtay İBHGK, T. 08.03.2019, E. 2017/10, K. 2019/1.
36 Güzel, p. 1723; Yargıtay 9. H.D., T. 07.12.2021, E. 2021/8864, K. 2021/16270.
37 Yargıtay 9. H.D., T. 10.12.2014, E.2013/5494, K.2014/37973; Yargıtay 9. H.D., T. 30.06.2011, E.2009/17762, K.2011/19801.
38 Yargıtay 9. H.D., T. 10.3.2004, E. 2003/14720, K.2004/4609.
39 Kozak, p. 115.
40 Nuri Çelik/ Nurşen Caniklioğlu/ Talat Canbolat, İş Hukuku, Beta Yayınevi, İstanbul, 2018, p. 300.
41 Çelik/ Caniklioğlu/ Canbolat, s. 300.
42 M. Polat Soyer, Rekabet Yasağı, Dokuz Eylül Üniversitesi Hukuk Fakültesi Yayınevi, Ankara, 1994, p. 43.
43 Çelik/ Caniklioğlu/ Canbolat, p. 300.
44 Süzek, p. 383.
45 Çelik/ Caniklioğlu/ Canbolat, p. 301.
46 Süzek, p. 385.
47 Çelik/ Caniklioğlu/ Canbolat, p. 309.
48 Yargıtay 9. H.D., T. 06.01.2020, E.2019/2294, K.2020/40.
49 Ömer Ekmekçi/ Esra Yiğit, Bireysel İş Hukuku Dersleri, On İki Levha Yayıncılık, İstanbul, 2021, p. 369.
50 Namlı, p. 157.
51 Namlı, p. 379-380.
