The employer's right of immediate termination with valid reason is regulated in Article 25 of the Labor Law as follows: "The employer may terminate the employment contract before the expiry of the term or without waiting for the notice period in the cases written in the article, whether the term is definite or not." According to subparagraph II of the aforementioned regulation, the employee's behavior that does not comply with the rules of morality and good faith is stated as a reason for immediate termination, and as stated in the title, the employee's behavior similar to the situations specified in Article 25/II also entitles the employer to termination with valid reason. The employer's right to use the mentioned right of immediate termination is subject to the period stipulated in Article 26/1 of the Labor Law. Termination after the expiry of these periods gives rise to the provisions and consequences of unjust termination.

In subparagraph h of Article 25/2, "h) The employee's insistence on not performing the duties obliged to perform even though he is reminded of them" is listed as one of the reasons for termination by the employer for valid reason. Parallel to Article 17 of Law No. 1475, this article is regulated in a different way from the former law, and we see that the employee's insistence on not performing the duties that the employee is obliged to perform, rather than not performing the duties that the employee is reminded to perform, is foreseen as a reason for termination. Therefore, since the persistent behavior of the employee is the main point, the employer should first warn the employee about the duties several times while exercising the right of immediate termination according to the aforementioned article and should proceed to terminate the employment contract of the employee who persistently fails to fulfill the duties despite this. As a matter of fact, while preserving the article in our Labor Law No. 4857, the legislator added the condition that the employee persists in this behavior in addition to the condition regulated in the former law.

When the conditions of the reason for immediate termination are examined;

- There must be a duty that the employee is obliged to perform.

When we look at the conditions of this reason for immediate termination, first of all, there must be a duty that the employee is obliged to perform. This duty can be determined according to the characteristics of the concrete case and as emphasized in the following the Supreme Court of Appeals decision, the duties that the employee is obliged to perform may arise from the law, regulation, individual or collective labor agreement.

The decision of the 9th Civil Chamber of the Supreme Court of Appeals, with Merits No. 2017/22156, Decision No. 2020/10256 dated 01.10.2020

"The duties that the employee is obliged to perform may arise from the law, regulations, individual or collective labor agreement. Whether they arise from the law or the contract, the duties that the employee is obliged to perform must be clear. According to the aforementioned provision, failure of the employee to fulfill the duties that the employee is obliged to perform is not sufficient for immediate termination. The employee must have been reminded of the duties (notified again) and insisted on not performing them despite this. The reminder must be related to the duties previously determined and notified to the employee and must be made after the employee refrains from fulfilling the duties. A reminder cannot be made by expanding the duties previously notified to the employee or by assigning additional duties. The reminder may be made verbally or in writing. The burden of proof is on the employer to prove that the work not performed falls within the scope of the duty, that a reminder was given, and that the employee insisted on not performing it. ( Unjust Termination in Turkish Labor Law 1st Edition, September 2020, pages 197-198)

3rd Civil Chamber of Bursa Regional Courts of Justice, with the Merits No. 2019/1919, Decision No. 2020/1137 dated 16.7.2020

"...the duties that the employee is obliged to perform should not be interpreted narrowly, and the duties arising from the law, collective bargaining agreement, employment contract, internal regulations, in short, all working conditions and the rule of good faith and honesty and the duties that the employee is obliged to perform should be considered within this scope. "

In this context, in the decision of the Regional Court of Appeal, as an example of these cases;

"the employee working as a security guard in a bank branch, who did not fully fulfill his duty of monitoring and surveillance in the bank due to coming late to work on various dates, was evaluated within the scope of this provision because he should be more careful in a high-risk workplace such as a bank and should correct his situation, especially after the reminders made to the employee..."

"The employee working as a driver was asked several times to wash the vehicle he was driving, but did not do so"

"The worker who was assigned to do the work of heating and gardening did not do the work of gardening".

Afterward, in the same decision;

"On the other hand, the employee's failure to do the work that is not among his duties or that the rule of honesty does not require the employee to do will not cause termination with a valid reason of the employment contract,

in fact, a worker who works as a machinist is asked to carry out his work as a painter,

the request of a worker employed as a middleman groundskeeper to work on a machine-head job being performed by another worker,

the termination of their employment contracts after they refused to accept that he was asked to perform the postmaster duty, which is an additional duty with great responsibility while carrying out quality control work

the work assigned to them is not within the scope of their duties, it is stated to be unjustified. "

In this respect, it should be noted that; as examples of situations that are not the duty of the employee

It is also stated in the aforementioned decision that "the employee did not cut his mustache despite being warned twice."

Again, it is rightly stated that since the employee cannot be expected to fulfill a request contrary to the law, this situation is not the subject of just cause termination. For this reason, the employer's unlawful orders and instructions cannot be considered within the scope of persistent failure to fulfill the duty.

As a matter of fact, in the decision; "In addition, refusal to accept the performance of an unlawful work does not constitute a valid reason for termination. For example, if the employer asks the employee to keep books in violation of the law, the employee's failure to comply with this instruction cannot be considered within the scope of this provision. However, the determination of the duties that the employee is obliged to perform will be determined according to the circumstances of each concrete case. In other words, in each case, the customary work of the employee should be determined first and then the conclusion should be made accordingly.

Although the work that the employer asks the employee to do is the usual work of the employee, if there is an inconvenience in terms of time and place or if the employee has a valid excuse, the failure to do the work does not constitute a valid reason for termination. In other words, the employee must have an obligation to work at that moment. As a matter of fact, according to the decisions of the Supreme Court of Appeals, the employment contract cannot be terminated by this provision if the employee who does not want to work on a week holiday is assigned to another job and does not accept to work there, or if the employee does not want to work on Sunday. Because the request to perform the work on a holiday constitutes incompatibility in terms of time."

As stated above, the concept of customary work within the scope of the duty that the employee is obliged to perform should be evaluated according to the characteristics of each concrete case. Even if the work that the employee is warned and reminded of is the usual work of the employee, if it is not appropriate for the employee to do that work in terms of place and time, then the employer will not be subject to a termination with a valid reason. Although the employer cannot subject the failure to perform a work that is not the duty of the employee to be subject to justified termination, if the work is refused to be done in a justified and good faith manner for the employee, it cannot be said that the employer has the possibility of rightful termination in these cases.

For example, requesting the work to be performed on holidays will also constitute incompatibility in terms of time. Even if overtime work is approved by the employee, or in the case of overtime work where the consent of the employee is not required, the employee's failure to work overtime may be considered as a failure to do the job, the Supreme Court of Appeals stated in the following decision that the termination is unjustified for the employee who was warned once to work overtime.

See. 9th Civil Chamber of the Supreme Court of Appeals, with the Merits No. 2004/25446, Decision No. 2005/16086 dated 09.05.2005

"The fact that the plaintiff, who is in charge of the department, was asked to stay at the workplace for overtime work together with the employees under their command, and despite this, the plaintiff's failure to work overtime cannot be characterized as not performing the duties that the plaintiff is obliged to perform within the scope of Article 17/2-g of the Law No. 1475, even though the plaintiff was reminded. The termination of the employment contract cannot be considered justified due to this action of the plaintiff who was warned once to work overtime. For this reason, according to the expert report on the notice and severance pay requests, the requests should be accepted, but the rejection of the requests is incorrect and requires a reversal."

Again, the employee is not obliged to accept the fundamental change that occurs against himself within the scope of Article 22 of the Labor Law, and it is possible to refrain from working as required by law.

If the employee's wage has not been paid for twenty days without a compelling reason or if adequate occupational health and safety measures have not been taken for the employee, it cannot be said that the employee has not fulfilled his contractual obligations in these cases.

At the same time, it should not be ignored that the duties that the employee is obliged to perform may be manifested in the form of not performing work as well as performing work. Examples of such cases are the cases where the employee is elected to the disciplinary or annual leave committee at the workplace but does not attend the said committees and does not attend the training given for Occupational Health and Safety.

- The Employee Must Be Warned by the Employer Regarding Their Duties.

For the employment contract of the employee who does not fulfill their duties to be terminated by Labor Law 25/II-h, the employer or the employer's representative must be warned by the employer or the employer's representative in terms of these behaviors. The fact that the employee's job description is predetermined does not mean a warning, and a reasonable time must be given for the employee to fulfill the reminded duty. The warning may be in writing or verbally, but it would be appropriate for the employer to make a written notification for ease of proof. In its decision dated 04.03.2004, the Court of Cassation 9th HD. 2004/1389 Esas, 2004/4190 Karar, ruled that the warning made by e-mail is deemed valid.

- The Employee Must Persistently Fail to Perform Their Duties Despite the Warnings.

As mentioned above, the employee's persistence in not performing the duties is the most important difference between the Labor Law No. 1475 and the Labor Law No. 4857.

9th Civil Chamber of the Supreme Court of Appeals with the Merits No. 2010/4892, Decision No. 2012/11435 dated 04.04.2012

"If there is no new action after the employee's action subject to the warning, the termination of the employment contract due to the action subject to the warnings cannot be considered justified. For this reason, while the plaintiff's severance and notice pay claims should be accepted, their rejection required a reversal."

The employee's failure to fulfill the duties despite the warnings must be persistent. As a matter of fact, the most significant difference between the Labor Law No. 1475 and the Labor Law No. 4857 is the persistence of the employee in not fulfilling the duties, and it must be proved by the employer that the employee does not fulfill the duties despite being warned and reminded of the duties.

On the other hand, while the failure of the employee to fulfill the duties despite being reminded of his duties constitutes the subject of just cause termination, when this valid reason for termination is evaluated together with Article 18 of the Labor Law; incomplete, poor or inadequate performance of his duties despite warnings is considered as a valid reason for termination.

Please see regarding this

9th Civil Chamber of the Supreme Court of Appeals with the Merits No. 2007/27680, Decision No. . 2008/5302 dated 17.03.2008

"The employee must comply with the instructions given by the employer within the scope of the right of management. Failure of the employee to comply with the instructions gives the employer the right to justified or valid termination of the employment contract, depending on the situation. Paragraph (h) of sub-paragraph II of Article 25 of the Labor Law considers the employee's insistence on not performing the duties that the employee is obliged to perform, even though the employee is reminded to do so, as a just cause for termination. On the other hand, as stated above, according to the reasoning of the Labor Law, the incomplete, poor, or inadequate performance of the employee's work despite warnings is a just cause for termination. If the employee does not fulfill the duties at all despite the warning, the employer may use the right of immediate termination for valid reasons, and if the employee fulfills the duties incompletely, badly, or inadequately, the employer may use the right of termination for just cause."

As a result, in the termination for just cause based on the article of the employment contract that the employer insists that the employee does not fulfill his/her duties, it is necessary to pay attention to factors such as the fact that work within the scope of the employee's duty has not been performed, the employer's proper warning to the employee, the employee's persistence in this behavior and the legality and reasonableness of the task expected from the employee. Considering that the termination for just cause made in a possible trial may be compared with the provisions of the termination for a valid reason, the employer should make a good distinction between the reasons that may weigh justified termination.

Bibliography;

  • After the Adoption of Labor Law No. 4857 in the Light of the Decisions of the Supreme Court of Appeals; The Employee's Insistence on Not Performing the Duties the Employee is Obliged to Perform Although Reminded and the Legal Consequences, Prof. Dr. Serkan Odaman, TÜHİS August- November 2004, pages 81-93
  • BETİN, OCAK, Employment Reinstatement Lawsuits, August 2021 pages 844-849
  • Seda Arslan, Employer's Right to Termination for Valid Reason, (Master's Thesis)
  • Çiğdem Menemenli Geniş, According to Article 25 of the Labor Law, Employer's Right to Termination for Valid Reason (Master's Thesis)
  • 9th Civil Chamber of the Supreme Court of Appeals with the Merits No. 2007/27680, Decision No. 2008/5302 dated 17.03.2008
  • 9th Civil Chamber of the Supreme Court of Appeals with the Merits No. 2017/22156, Decision No. 2020/10256 dated 01.10.2020
  • 9th Civil Chamber of the Supreme Court of Appeals with the Merits No. 2004/25446, Decision No. 2005/16086 dated 09.05.2005
  • 9th Civil Chamber of the Supreme Court of Appeals with the Merits No. 2004/1389, Decision No. 2004/4190 dated 04.03.2004
  • 9th Civil Chamber of the Supreme Court of Appeals with the Merits No. 2012/185, Decision No. 2014/6345 dated 27.2.2014
  • 9th Civil Chamber of the Supreme Court of Appeals with the Merits No. 2016/11952, Decision No. 2020/638 dated 20.1.2020
  • 9th Civil Chamber of the Supreme Court of Appeals with the Merits No. 1996/31348 Decision No. 1996/6091 dated 25.03.1996
  • 9th Civil Chamber of the Supreme Court of Appeals with the Merits No. 2008/13228, Decision No. 2009/37131 dated 25.12.2009
  • 9th Civil Chamber of the Supreme Court of Appeals with the Merits No. 2010/4892, Decision No. 2012/11435 dated 04.04.2012
  • 9th Civil Chamber of the Supreme Court of Appeals with the Merits No. 2022/4652, Decision No. 2022/5274 dated 26.04.2022
  • 9th Civil Chamber of the Supreme Court of Appeals with the Merits No. 2015/34552, Decision No. 2016/17028 dated 03.10.2016
  • 7th Civil Chamber of the Supreme Court of Appeals with the Merits No. 2014/13217, Decision No. 2014/20090 dated 04.11.2014
  • 9th Civil Chamber of the Supreme Court of Appeals with the Merits No. 2016/11209, Decision No. 2017/7825 dated 04.05.2017
  • 3rd Civil Chamber Bursa Regional Court of Appeals with the Merits No. 2019/1920, Decision No. 2020/1043 dated 23.6.2020

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.