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Termination of the Employment Agreement with Valid
Reason on the Basis of Incapacity of the Employee
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Att. Fatih Isik
Introduction
Employment agreement creates a constant relation between the
employer and the employee and imposes contractual duty on employ-
ee to serve to a satisfactory level. Since the employment agreements
create constant relations between the parties, the agreements are con-
cluded, in principle, for an undetermined term. The agreement for a
determined term may be concluded only in some exceptional cases.
Art. 11 of the Labor Act numbered 4857 (“LA”) stipulates that the
agreements in which the term is not stated shall be deemed as is con-
cluded for an undetermined term. The same article states also the cases
in which the employment agreement can be concluded for a deter-
mined -or fixed- term. Pursuant to said article, an employment agree-
ment for a determined term can be concluded only if the agreement is
concluded for a work which has a specified term or for a specific work
or the work is based on the emergence of objective conditions; other-
wise, the agreements for determined period cannot be concluded.
The fixed-term agreements, which are duly concluded, expire
automatically once the term agreed for the agreement is reached. The
fact whether the agreements are “duly” concluded for a determined
term presents its importance in Article 11(2) of LA. Pursuant to said
article, an employment agreement for a definite term must not be con-
cluded more than once, except when there is an essential reason which
may necessitate repeated (chain) contracts. Otherwise, the employ-
ment contract is deemed to have been made for an undetermined term
from the very beginning.
However, since there is not a fixed term for the agreements for an
undetermined term, it is not possible to accept that the parties are
bound by the agreement forever. As a solution, it is accepted that the
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NEWSLETTER 2012
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Article of March 2012