The Requirement to Obtain Defense Statement in the Termination of the Employment Contract for Just Cause by the Employer for Health Reasons
Introduction
Employment relations between the employee and the employer may be terminated for various reasons, as in all other contractual relations. Employment contracts may be terminated through mutual agreement between the parties, as well as through the unilateral termination of the employment contract by the employee or the employer, exercising the resolutive formative right. Termination of the employment contract is regulated between Articles 17 and 29 of the Labor Law No. 4857 (“Labor Law”), in particular termination with notice under Article 17, termination for just cause under Article 18, the right of the employee to terminate immediately for just cause under Article 24 and the right of the employer to terminate immediately for just cause under Article 25.
As it can be understood from the headings, immediate termination for just cause grants the terminating party the right to terminate the employment contract immediately, whereas in termination with notice, the employment contract may be terminated, in principle, at the end of the notice period. The other significant difference between the two types of termination is that the termination with notice can only be applied for indefinite-term employment contracts, while the immediate termination for just cause can be applied for both definite and indefinite-term employment contracts. That said, if the employee benefits from job security, the employer must rely on a valid reason as per Article 18 in order to terminate the indefinite-term employment contract by granting a notice period.
In principle, the termination notice is not subject to any formal requirements. However, pursuant to Article 19 of the Labor Law, in case of termination for valid reasons, the termination notice must be in writing and the reason for termination must be clearly stated in the notice. Additionally, Article 19/2 of the Labor Law stipulates that the termination of an indefinite-term employment contract for reasons arising from the behavior or performance of the employee is contingent on obtaining the employee’s defense. The employer’s termination of the employment contract without obtaining the employee’s defense invalidates the termination. Pursuant to the relevant provision,
“An employee’s indefinite-term employment contract may not be terminated for reasons concerning the employee’s behavior or efficiency without first obtaining his/her defense against the allegations against him/her. However, the employer reserves the right of termination in accordance with the conditions set out under subparagraph (II) of Article 25.”
Article 19/2 of the Labor Law explicitly regulates two issues: (i) if the reason for termination concerns the behavior or efficiency of the employee, the employee’s defense is required, and (ii) a defense is not required for the immediate termination of the employment contract by the employer pursuant to Article 25/II of the Labor Law, due to circumstances not complying with the rules of morality and goodwill.
In this regard, the relationship between Article 19 and Article 25 of the Labor Law should be analyzed. Article 25/last of the Labor Law sets out that the employee whose employment contract has been terminated by the employer for just cause may apply for judicial remedy within the framework of Article 18, Article 20 and Article 21. In other words, the employee benefiting from job security may request reinstatement with the claim that the reason shown in the termination of his contract is not justified. However, it is noteworthy that the legislator does not refer to Article 19 in Article 25/last. Accordingly, the relationship between Article 19/2 of the Labor Law and Article 25/last has been the subject of controversy among the legal scholars for many years.
There is unfortunately no explicit provision in the Labor Law regarding the requirement to obtain a defense from the employee in the event of termination of the employment contract for reasons other than these two clearly stated in Article 19/2, and the issue is therefore addressed in Court of Cassation decisions.
One of the unspecified circumstances where the requirement to obtain a defense is not explicitly regulated is the termination of the employment contract by the employer pursuant to Article 25/I-b of the Labor Law due to the medical reports received by the employee and the civil chambers of the Court of Cassation rendered different decisions on this issue. The General Assembly of the Court of Cassation (“General Assembly”) concluded the discussions in its decision on the unification of judgements dated 2018.[1]
Subject of the Unification of Judgements
As per Article 25/I of the Labor Law,
“The employer, regardless of whether the term is definite or not, may terminate the employment contract before the expiry of the term or without waiting for the notice period in the following cases:
I. Health reasons:
a) In the event that the employee “gets sick or becomes disabled” due to a disease arising from his/her own intention or disorderly living or addiction to alcohol, and the absenteeism arising from this reason lasts more than three consecutive working days or five working days in a month.
b) In the event that the Health Board determines that the disease of the employee is incurable and that it is inconvenient for the employee to work at the workplace.
Except for the reasons listed in sub-paragraph (a), the right to terminate the employment contract without notice for the employer in cases such as illness, accident, childbirth and pregnancy arises after the specified cases exceed the notification periods in Article 17 by six weeks depending on the working time of the employee at the workplace.”
Terminations pursuant to Article 25/I-b of the Labor Law are based on the employee’s absence from work due to illness, accident or pregnancy, with or without fault, except for the employee’s intent or disorderly living or addiction to alcohol.[2] However, in order for the employer’s right to terminate for just cause to arise, the employee’s absence must exceed the notice periods stipulated in Article 17 of the Labor Law by six weeks.
The subject of the unification of judgements decision (“Decision”) constitutes whether the employer is required to obtain a defense from the employee before the termination of the employment contract for just cause due to the medical reports received by the employee pursuant to Article 25/I-b of the Labor Law. The Decision aims to resolve the differences of opinion between the 9th Civil Chamber of the Court of Cassation and the 22nd Civil Chamber of the Court of Cassation.
Opinion of the Ninth Civil Chamber of the Court of Cassation
The 9th Civil Chamber of the Court of Cassation had been rendering decisions that the employer is obliged to obtain a defense from the employee in the termination of the employment contract for just cause due to the medical reports received by the employee pursuant to Article 25/I-b of the Labor Law. The justification was that Article 19/2 of the Labor Law excludes the obligation to obtain a defense only for terminations made pursuant to Article 25/II of the Labor Law, and that there is a legal obligation to obtain a defense for all other terminations.
Opinion of the Twenty-Second Civil Chamber of the Court of Cassation
The 22nd Civil Chamber of the Court of Cassation is of the opinion that there is no requirement to obtain a defense, based on the preamble of Article 19 that “If the indefinite-term employment contract is terminated for a reason concerning the behavior or efficiency of the employee, the opportunity to defend himself/herself against the allegations against him/her shall be given first. However, in cases such as the employee’s mental or physical incapacity, or frequent and unnecessary quarrels with his/her colleagues or superiors, the employer is not obliged to take his/her defense.”. The 22nd Civil Chamber of the Court of Cassation interprets the phrase “mental and physical incapacity of the employee” in the justification as it covers the cases of termination for just cause set out in Article 25/I of the Labor Law. Furthermore, it also considers it as a deliberate choice not to refer to Article 19 in Article 25/last of the Labor Code as opposed to the provision that the employee may apply for judicial remedy within the framework of Article 18, Article 20 and Article 21, claiming that the termination is not in accordance with the reasons stipulated under Article 25 of the Labor Code, and thus states that there is no obligation to obtain a defense for terminations made pursuant to Article 25/I-b of the Labor Law.[3]
Decision of the General Assembly
The General Assembly concluded that there is no requirement to obtain a defense from the employee for terminations to be made pursuant to Art. 25/I-b of the Labor Law due to medical reports received by the employee. Accordingly, the Court pointed out that the nature of the relationship between Article 19/2 and Article 25/last of the Labor Law should first be clarified and assessed that Article 19/2 of the Labor Law should be considered as an article regulating the procedure for the termination of employment relationships subject to job security.
The justification of the decision also discusses in detail the purposes of obtaining a defense before termination. The purpose of obtaining a defense from the employee is to make the employee aware of the grounds on which the employer terminated the employment contract; to enable the employee to evaluate the allegations against him/her and to reveal the reality in this regard, and thus to continue the employment relationship ensuring that the employer renounces the termination.[4] As a matter of fact, granting the right of defense to the employee is in line with the principle that termination is a last resort. As per the General Assembly’s decision, “considering the purposes of obtaining a defense from the employee, there is no point in obtaining a defense from the employee in cases that do not originate from the employee, are not related to the employee, or that the employee cannot dispose of it or change it.”. The General Assembly evaluates that the defense to be requested from the employee before termination is not significant for both the employee and the employer in case of the absence of the employee from work exceeding the waiting period due to health reasons.
The General Assembly does not agree with the opinion of the 9th Civil Chamber of the Court of Cassation that Article 19/2 of the Labor Law only reserves Article 25/II, and therefore a defense is required in all other cases. The termination of the employment contract by the employer immediately and without compensation pursuant to Article 25/II of the Labor Law due to the employee’s behavior constitutes the most severe sanction of the contract. While it is obligatory to take the defense of the employee for less serious allegations, the fact that there is no obligation to take a defense for more serious reasons is contrary to the general principle of law that the part is also included in the whole (in toto et pars continetur). Based on this view, the General Assembly agrees that the legislator needed to provide a special clarification. This is also the reason why only Article 25/II is reserved in Article 19/2 of the Labor Law.
The opinion of the 22nd Civil Chamber of the Court of Cassation that “mental or physical incapacity of the employee” in the preamble of Article 19 of the Labor Law refers to the situations specified in Article 25/I of the Labor Law is also addressed in the General Assembly’s decision.
For the reasons explained above, the General Assembly decided that there is no requirement to obtain a defense from the employee in the termination of the employment contract pursuant to Article 25/I-b of the Labor Law. However, the dissenting opinion sets out various arguments against the Decision. As per the dissenting opinion, the health of the employee should be considered within the scope of the employee’s efficiency and the importance of obtaining a defense in matters related to health has been emphasized. The dissenting opinion points out that whether the employee has recovered after the end of the medical report and waiting period, whether the employee is able to work or not, and whether the employment relationship has become unbearable due to health reasons can only be understood from the defense to be given by the employee. Since it is required to obtain a defense pursuant to Article 19/2 of the Labor Law in case of termination of an indefinite-term employment contract for reasons concerning the behavior or efficiency of the employee, a defense is required prior to the termination based on Article 25/II-b of the Labor Law. The dissenting opinion also takes into consideration the principle of strict interpretation and the principle of interpretation in favor of the employee, which are the basic principles of labor law, and points out that the failure to request a defense in cases of immediate termination or termination without notice may have consequences offending the sense of justice.
Conclusion
The termination of the employment contract, which is one of the main concerns of labor law, is a controversial issue in practice. Whether the termination of the employment contract is based on a valid reason or whether the termination is made in accordance with the required procedure is frequently the subject of employee-employer disputes. However, different decisions may be rendered by labor courts or supreme court decisions for similar cases, and differences of opinion may arise in practice. The requirement to obtain a defense for terminations pursuant to Article 25/I-b of the Labor Law has been discussed both by the legal scholars and in judicial decisions for many years. In 2018, the General Assembly put an end to the discussions with its decision that a defense is not required for such terminations.
- The Court of Cassation General Assembly of Civil Chambers, E. 2017/9, K. 2018/10, T. 19.10.2018, www.lexpera.com.
- Süzek, Sarper: İş Hukuku, 18th Edition, Istanbul, Beta, 2019, p. 666.
- In the same direction, please see Süzek, Sarper: İş Hukuku, 18th Edition, Istanbul, Beta, 2019, pp. 694-695; Kılıçoğlu, Mustafa / Şenocak, Kemal: İş Kanunu Şerhi Vol. 1, 2nd Edition, Istanbul, Legal, 2008, p. 1342. According to Süzek, although it is mentioned that there is a gap in law due to the contradiction between Article 19/2 of the Labor Law and Article 25/last of the Labor Law, this gap should be filled through the application of Article 25/last of the Labor Law, considering the purpose of the provision.
- Regarding the purpose of the right of defense, see Duman, Barış: “4857 Sayılı İş Kanunu Çerçevesinde İş Sözleşmesinin Feshinde İşçinin Savunmasının Alınması”, İnönü University Journal of Faculty of Law, 2020, C.11, S.1, p. 3.
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