The Term/Duration Required for the Termination of Labor Agreement
Faruk Barış Mutlay“Statutory limitation–Terms/durations” are not accepted for all terminations to be enforced by employee or employer, which is specified in the 26th article of Labor Law, numbered 4857. The terms specified in the aforementioned article are applicable only on the condition that the labor agreement is canceled by basing upon circumstances, which do not comply with codes of ethics and goodwill and other similar principles. Therefore, a term of 1 year or six business days are not taken into account in case of a termination of labor agreement with any valid reason other than termination by the employer under article 25/II of the Labor Law or termination by the employee under article 24/II of the Labor Law. The terms specified in the aforementioned article cannot be considered also for terminations with a valid reason. Based on the content of the regulations, terminations with a valid reason other than article 24/II of the Labor Law and article 25/II of the Labor Law should be concluded in terms of duration. In this direction, it will be accurate to agree upon the fact that both the employer and the employee can exercise the right of termination as long as the reasons specified in the relevant provision continue under the content of regulations. However, under the content of relevant regulation, reasonable time shall be sought only for the reason of termination with a valid reason included in the article 25/I,a of Labor Law. Similarly, for terminations to be executed with a valid reason, the reasonable time to be determined according to the characteristic of concrete case and qualification of the termination shall be based on. In the scope of our study, the subject was mainly evaluated within the framework of the Labor Law numbered 4857 due to the wide application area, but the term related to termination was also considered as regards other individual labor laws and the Turkish Code of Obligations.
İş Sözleşmesinin Feshinde Süre
Faruk Barış Mutlay4857 sayılı İş Kanununun 26. maddesindeki süreler, işçi ya da işveren tarafından gerçekleştirilecek bütün fesihler için kabul edilmemiştir. Maddedeki süreler, iş sözleşmesinin sadece ahlak ve iyi niyet kurallarına uymayan hallere ve benzeri durumlara dayanılarak feshedilmesi halinde uygulama alanı bulur. Dolayısıyla iş sözleşmesinin işverence İşK m 25/II veya işçi tarafından İşK m 24/II dışında herhangi bir haklı nedenle feshinde bir yıllık ya da altı iş günlük süreler dikkate alınmaz. Geçerli nedenle yapılan fesihlerde de anılan hükümdeki süreler göz önünde bulundurulmaz. İşK m 24/II ve İşK m 25/II dışındaki haklı nedenler açısından ilgili düzenlemelerin içeriği esas alınmak suretiyle süre açısından sonuca varılmalıdır. Bu doğrultuda düzenlemeler uyarınca işçinin ya da işverenin, hükümlerdeki nedenler devam ettiği sürece fesih hakkını kullanabileceğini kabul etmek isabetli olur. Bununla birlikte düzenlemenin niteliği gereği sadece İşK m 25/I,a’da yer verilen haklı nedenle fesih sebebi için makul süre araştırılması yapılmalıdır. Aynı şekilde geçerli nedenle yapılacak fesihlerde somut olayın özelliğine ve feshin niteliğine göre belirlenecek makul süre ölçütü esas alınmalıdır. Çalışmamız kapsamında konu, uygulama alanının geniş olması nedeniyle ağırlıklı olarak 4857 sayılı İş Kanunu çerçevesinde değerlendirilmişse de diğer bireysel iş kanunları ve Türk Borçlar Kanunu açısından da ele alınmıştır.
The subject matter of “statutory limitation–the term/duration required for the termination of labor agreement” is investigated in our study by trying to include decisions taken by the Supreme Court of Appeals. Within the scope of our study, basically, it is analyzed whether individual labor laws and Turkish Code of Obligations include explicit regulations regarding the term/duration for the termination of labor agreement and the range of application for terms in the cases where relevant regulations exist and whether exercising of the right of termination, which is among the formative rights, is subject to any term in the cases where explicit regulations do not exist and if it is subject to any time-constraint, the time period during which such right of termination is required to be exercised. The subject has been evaluated in the termination of the employment agreement within the framework of the Labor Law numbered 4857 within the scope of our study, due to the wide application area of the subject.
The term for exercising the right of termination in the Labor Law, numbered 4857, is only included explicitly in the article 26. However, the terms in the said provision are not accepted for all terminations to be carried out by the employer or the employee. Terms specified in the relevant article are applicable only on the condition that the labor agreement is terminated by basing upon circumstances, which do not comply with codes of ethics and goodwill and other similar principles. Therefore, the 1-year term or six business days term is not taken into account in case of a termination of labor agreement with any valid reason other than termination by the employer pursuant to article 25/ II of the Labor Law. In other words, due to force majeure events pursuant to article 25/III of the Labor Law and due to the fact that the employee is taken into custody or arrested pursuant to article 25/IV of the Labor Agreement, the terms specified in the article 26 of Labor Law for the termination of labor agreement by the employer are not applied as a result of absenteeism of the employee as long as the notification period due to health issues pursuant to article 25/I of the Labor Law. The terms stipulated in the said provision shall not be applicable also for the terminations with a valid reason as the terms specified in the article 26 of Labor Law cannot be applied for the termination of labor agreement by the employer other than the reasons stipulated in article 25/II of Labor Law.
Similarly, the terms stipulated in the article 24/I of Labor Law are not taken into account for the termination of labor agreement by the employee with a valid reason other than the reason specified in article 24/II of the Labor Law, that is, due to health conditions pursuant to article 24/I of the Labor Law or force majeure events pursuant to article 24/III of the Labor Law. Terminations with a valid reason other than article 24/II of the Labor Law and article 25/II of the Labor Law shall be concluded regarding the terms by basing on the content of relevant regulations. Within this context, it will be accurate to agree upon the fact that both the employer and the employee can exercise the right of termination as long as the reasons specified in the relevant provision continue in accordance with the content of regulations; arguing that the labor agreement can be terminated within a reasonable time period following the dissolution of the aforementioned reasons conflicts with the content of relevant provisions. No reason would remain to require the employer or the employee to maintain or terminate the labor agreement as when the reasons are dissolved the circumstances that require the labor agreement to be terminated will be invalid. However, reasonable time shall be sought only for the reason of termination with a valid reason included in the article 25/I,a of Labor Law pursuant to the content of relevant regulation. In addition to this, for terminations to be executed with a valid reason because of characteristics born by valid reasons, just like article 25/I,a of the Labor Law, and as a result of the procedure, which shall be followed for the termination, the reasonable time to be determined according to the characteristic of concrete case and qualification of the termination shall be based on.
The mandatory structure of these terms is examined within the scope of our study, along with the range of application of terms included in the article 26 of Labor Law. The interpretation of the provision clearly set forth that the 1-year term is absolutely mandatory. Furthermore, it shall be accepted that both six business days term and oneyear term are absolutely mandatory in accordance with the purpose of making this article. In fact, the priority of statutory limitation specified in the article 26 of Labor Law is actually to eliminate legal uncertainty and to ensure legal security rather than protecting the interests of parties.
The legal problem that emerges while implementing a six business days term and a one-year term is not only related to the range of application and mandatory structure. One shall also dwell on what shall be understood from the concept of pecuniary advantage which gives rise to the failure to implement the one-year term. Although it is easy to determine the meaning of pecuniary advantage in general terms, the purpose of the provision shall also be predicated on while assigning its meaning concerning the article. By accepting the statutory limitation through 26th article of the Labour Law, Lawmakers sought the ways to ensure the legal certainty by means of preventing the related person from undergoing legal uncertainty. Therefore, on the grounds of ‘‘pecuniary advantage’’, an exception is introduced for the rule, the ultimate aim of which is to eliminate legal uncertainty. While evaluating the expression of pecuniary advantage, the said aim shall be taken into consideration. To put a finer point on this issue, when it is taken into account that the statutory limitation is accepted for public order and public interest, it will be more reasonable to assert that the introduced exceptional implementation serves the same purpose. In this respect, it will be right to accept that an implementation that does not violate the public order would not constitute the exception of a provision, which is imposed to assure public order. Consequently, if it comes to the conclusion that the implementation, which is included in the scope of article 25/II of the Labour Law, causing an employee to derive material benefit, subverts the public order then, we think that the one-year term shall not be implemented. Apart from the exceptional case that affects the implementation of this one-year term, the concept of the business day is also evaluated in the sense of implementation of six business days. In this context, it will be appropriate to consider the business day as six-days except for the weekend days for the implementation of 26th article of the Labour Law both to eliminate potential legal problems and to accomplish the purpose of the relevant provision.
