Termination and Defence Procedure for Employers | İzmir

What we do in this area

The firm handles the process on the employer side from the decision to terminate to the completion of exit formalities: assessing whether the incident constitutes just cause or a valid reason, preparing the request for a defence and the minutes, drafting the notice of termination, preparing the release and the certificate of employment, and responding to the mediation application that follows. For companies in an ongoing advisory relationship, this work begins before termination comes onto the agenda, with the drafting of the disciplinary code and the annexes to employment contracts; this arrangement is described on the corporate advisory page.

This page is a sub-topic of the employment law tree and is written from the employer's perspective. How a termination is reviewed on the employee's side is dealt with on the reinstatement action and mediation page.

Just cause or valid reason

The two types of termination have different consequences, and confusing them is the most common error.

Heading	Immediate termination for just cause	Termination with notice for a valid reason
Basis	Art. 25 Labour Code	Art. 18 Labour Code
Typical example	Conduct contrary to honesty and loyalty, unauthorised absence, harassment	Poor performance, conduct continuing despite a warning, requirements of the enterprise
Notice period	None; the termination takes effect immediately	Two to eight weeks depending on seniority, or payment in lieu (Art. 17)
Severance pay	Not paid in cases of breach of the rules of morality and good faith	Paid
Defence	Article 19 expressly reserves the employer’s right to terminate under Article 25/II; the requirement is assessed according to the ground for termination	Mandatory in terminations for conduct or performance (Art. 19)
Time limit	For Article 25/II: six working days from learning of the act and one year from the act; the one-year limit does not apply where the employee obtained a material benefit (Art. 26)	Within a reasonable time

If a termination for just cause is not upheld by the court, the file does not close; the termination is then examined for a valid reason. If no defence was taken, the termination is at this stage deemed procedurally invalid and the consequences of reinstatement follow. For this reason, the firm takes as its rule that a defence is taken even in terminations for just cause and that the six working day period is planned with the defence process in mind. In the practice of the Court of Cassation (Yargıtay), the six working days run from the moment the authority competent to terminate learns of the act; while an internal investigation is ongoing, the start of the period may be tied to the completion of the investigation, but this assessment varies from file to file.

How the process works

Documenting the incident. Absence, breach of rules or a performance problem is recorded in minutes with the date, time and witness signatures. In cases of absence, separate minutes are kept for each day and the employee is asked to state an excuse by notary or by registered letter with return receipt.
Requesting a defence. The alleged incident is written in concrete terms, a reasonable time is given for the defence and the letter is served against signature; if the employee refuses to sign, this is recorded in minutes (Art. 109).
Assessing the defence. The termination decision is taken after the defence is received; a termination letter prepared before the defence period has expired creates the impression that the defence was taken as a mere formality.
Notice of termination. It is made in writing and the reason is stated clearly and definitively (Art. 19). A reason not written in the notice cannot be raised in the action; for this reason, the reason is written neither incompletely nor so broadly that it cannot be proven.
Closing formalities. Severance, notice, annual leave and wage claims are calculated and paid through a bank; a certificate of employment is issued (Art. 28); the Social Security Institution (SGK) exit declaration is filed with the correct exit code within the statutory period.

Time limits and points to note

A release is absolutely void if it was not drawn up at least one month after termination, does not show the heads of claim and their amounts one by one, or the full entitlement was not paid through a bank (Article 420 of the Turkish Code of Obligations (TBK) No. 6098). A release signed on the day of termination does not meet this condition.
A resignation letter obtained undated or on blank paper may be held invalid on an allegation of duress and converts the termination into a termination by the employer.
In terminations for conduct, the Court of Cassation applies a proportionality review; if no prior written warning was given, termination at the first breach is usually found disproportionate. In terminations based on the requirements of the enterprise, the principle that termination must be the last resort applies.
Dismissals reaching the numbers in Art. 29 Labour Code within a one-month period count as collective redundancy; written notice to the workplace union representatives, the relevant provincial directorate and İŞKUR is required at least thirty days in advance.
Since a mediation application may arrive within one month of termination, the defence letter, the minutes and the proof of service of the notice are kept in a single file.

Support given to companies in İzmir under this heading usually begins before termination; how a file is handled at the firm is explained on the how we work page.

FREQUENTLY ASKED

What people ask about this area

Can a termination for just cause be made without taking the employee's defence?

Article 19 of the Labour Code No. 4857 excludes cases of breach of the rules of morality and good faith under Article 25/II from the defence requirement; it is legally possible. However, if the court does not accept the just cause, the termination is examined for a valid reason, and the failure to take a defence renders the termination invalid at that stage. Because of this risk, in practice a defence is taken in terminations for just cause as well.

When does the six working day period start?

The period runs from the day on which the conduct contrary to the rules of morality and good faith is learned of by the authority competent to terminate, and in any event the right to terminate lapses one year after the act (Art. 26 Labour Code). Where the employee obtained a material benefit from the incident, the one-year upper limit does not apply. Under the practice of the Court of Cassation (Yargıtay), knowledge may not be deemed to have occurred until the internal investigation conducted to clarify the incident is complete; however, the investigation is expected to be concluded within a reasonable time.

Which records are required for termination on grounds of absence?

Under Art. 25/II-g Labour Code, absence without permission or without a just cause for two consecutive working days, twice in one month on the working day following any holiday, or three working days in one month is a ground for termination for just cause. Minutes signed by witnesses are kept for each day of absence, and a letter is sent to the employee by notary or by registered post with return receipt asking them to state their excuse. Excuses subsequently documented by the employee, such as illness, remove the just cause.

Is a release signed on the day of termination valid?

No. Under Article 420 of the Turkish Code of Obligations (TBK) No. 6098, for a release to be valid, at least one month must have passed since the end of the contract, the type and amount of the claim must be written clearly and payment must have been made in full through a bank. A release that does not meet these conditions is absolutely void; the payment made serves only as a receipt and is deducted from the debt.

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