The General Aspects of Turkish Labor Law in Light of Supreme Court Precedents FAQs
1. What is the definition of Employment Agreement? An employment contract is a contract in which one party (“employee”) undertakes to perform work dependently while other party (“employer”) undertakes to pay salary in return of the works performed. The Employment Agreement has stipulated in Labor Law numbered 4857 and Code of Obligations numbered 6098. The main obligation of the employee is to perform work, while the main obligation of the employer is paying salary. 2. Are there any requirements as to form in terms of employment contracts? As a rule the employment contracts can be executed in any form and they do not have to be in written form. However, in terms of the claims to be provable it is always suggested to execute the employment agreement in written. Exception: Definite term employment contracts shall be in written form as per the Article 11/2 of the Labor Code. 3. Types of employment contracts Trukish Labor Code article 11/1 defines the definite & indefinite-term contracts “An employment contract is deemed to have been made for an indefinite period where the employment relationship is not based on a fixed term. An employment contract for a definite period is one that is concluded between the employer and the employee in written form, which has a specified term or which is based on the emergence of objective conditions like the completion of a certain work or the materialisation of a certain event.” a. Definite Term Contracts TLC article 11/2:“An employment contract for a definite period must not be concluded more than once, except when there is an essential reason which may necessitate repeated (chain) contracts. Otherwise, the employment contract is deemed to have been made for an indefinite period from the very beginning.” TLC 11/3: “Chain contracts based on essential reasons shall maintain their status as contracts made for a definite period.” • As it is clearly stated, the definite term employment contracts should be in written. • The objective conditions: Objective conditions mean to engage the term of the contract with a type of work which will be completed in a certain time period due to its nature such as; completion of plastering work, completion of a project etc. • The definite period can be either decided as a duration (like 1-year) or can be understood from the aim of the work decided to be fulfilled by the employee under the contract. In this second situation, with the completion of the work (and when the aim has been reached) the contract is accepted to have ended. • In accordance with the precedent of Court of Cassation, a definite-term employment contract concluded without the presence of an objective condition is accepted as indefinite-term and the employee cannot demand remaining duration receivables. The definite term employment contracts finish automatically when the duration/term determined in the contract expired without needing a cancellation declaration/ termination notification by the parties. As principle the employees cannot be entitled to severance pay if the contract has ended due to expiration of the contract term (exceptions will be stated below) The pre-notification cannot be applied for definite-term contracts. As the prenotification (termination notification) has not been made by the employer, the employee cannot benefit from the right to search a new job starting from the date of pre-notification until the date of termination, without any deduction being made from his wage. The employee who work with definite-term contracts are not accepted within the scope of employment security which means they cannot file reemployment suit before the court. (This is the most disadvantageous feature of definite-term contract. That is why the idea of “the conclusion of such contracts with employees should be restricted in the systems where the employment security is applied” is supported. In the contract of International Labor organisation numbered 158 and named “The Termination of the Business Relationship by Employer” it is stated that the necessary protective measures shall be taken for conclusion of fixed-term employment contract which are usually preferred to abstain from the protective provisions of indefinite-term employment contracts (art. 2/3). ) i. Chain Contracts Some employers who wants to avoid the termination notification and to pay the compensation for that period as well as avoiding to pay severance pay when the conditions are met, make short-term contracts and/or renewing those contracts. Supreme Court finds concluding definite contracts to avoid such …
