In some employment affairs, employer undergoes a serious amount of expense to train an employee and as a return of this expense, would fairly expect the employee to work for a certain amount of time. In order to guarantee this purpose, in practice, we see that employers add a clause to the respective employment contract of the employee under the title of "Training Commitment" or likewise, or otherwise sign a separate contract, letter of undertaking or an agreement under which it is prescribed that, in case employee quits the employment before the contractually specified time after training or causes employer to terminate the contract based on a justified reason attributable to the employee; employer will have the right to claim refund of training expenses and salaries paid during the training process and also a certain amount of compensation as penalty. In relevant judicial precedents of the Supreme Court, penalty clause, repayment of salary and training expenses are evaluated separately. Thus, we are going to analyze the subject matter under three main topics within the framework of Supreme Court's approach.

1) Penalty Clause:

In the doctrine, penalty is defined as a 'separate' debt having a financial value that shall become payable in case of non-fulfillment or deficient fulfillment of a certain obligation of the adverse party1.

The respective issue is provided under Articles 158 to 161 of the current Code of Obligations No. 818, while no explicit provision is specified under the Labor Law No. 4857. Therefore, the Supreme Court has created certain labor-related principles for the problems where the aforementioned articles of the Code of Obligations could not suffice to solve.

Amongst those principles, the most important one would be that a penalty clause is deemed invalid if it is not specified bilaterally but unilaterally, i.e. only to the employee but not to both parties of the contract2. Consequently, penalty clauses that nowadays are 'standardized' in almost all employment contracts for payment of a fixed amount of indemnity in the event that employee who attended to a vocational training expenses of which were covered by employer resigns his office before the contractually specified period of time or employer discharges him for a justified reason attributable to the employee, shall simply be ruled out by the Turkish Labor Courts in case of a labor dispute heard accordingly.

It should finally be mentioned that, Article 419 of the new Code of Obligations no. 6098 that shall enter into force as of July 1, 2012 explicitly prescribes that penalty imposed only against the employee shall be null and void. On the other hand, since there is no explicit provision contemplating otherwise, it could be accepted that bilateral penalties to be imposed only to employer would be applicable.

2) Refund of Salary:

Both the Labor Law and the case-laws of Supreme Court regard the training duration as involved in the employment term for the determination of his/her employment rights. Therefore, regardless of the identity of the terminating party or the reason of termination, the employee shall always be entitled with the salary pertaining to the term of his/her vocational training which under no circumstance shall be returned to employer. Most of the jurists also agree that refund of the salary pertaining to training period of an employee who quitted before its due time mentioned in the contract is not possible3.

Indeed, the Supreme Court, in one of its settled decisions, contemplates that, the payments made to trainers or training companies could be claimed within the scope of the training costs; however, the salaries paid to employee would not be a question to that effect4.

One should further note that, in addition to the salaries paid to employee during his/her training, the taxes and social security premiums payable in connection with the respective salaries shall be excluded from the claimable training costs5

3) Refund of Training Expenses:

According to the recently given Supreme Court judgments, it is stated that employer will be able to claim the return of expenses it incurred for vocational training of an employee if a clear provision is added to the contract or a separate contract is concluded accordingly. In other words, if provided so in written form, employee who resigned before the agreed term despite his/her commitment or is dismissed due to a justified reason arisen from the employee's misconduct or deficiencies may be requested to pay the training costs of employer to increase his/her professional abilities and efficiency. In principle, all expenses incurred for employee's training can be reclaimed, such as the course fees, accommodation costs, travelling expenses etc.6

On the other hand, the Supreme Court provides certain criteria to be taken into account for accepting and calculation of the training costs subject to repayment to employer. First of all, the employee shall have had an occupational interest in the respective training, i.e. he/she shall have had gained or improved his/her professional skills and efficiency as a result of the respective trainings which would allow him/her to take a higher place in the market.

Second of all, the minimum working period that has been undertaken by employee should not be deemed excessive considering the actually worked period and the duration of training. Notwithstanding this, the Supreme Court has no clear explanation as to how long this minimum period shall be. However, it has certain decisions which may help us to understand what would not be deemed excessive. For instance, if an employee who attended to a 3-month-long training is expected to work for 12 months but the employee worked for 6 months, the employer may claim expenses of 1.5 months. Also, if expenses are covered collectively for a group of workmen, expense for employee subject to the related contract, shall be calculated by dividing expenses to the number of attendant employees.

However, one should note that employer cannot claim even these expenses, if the employee terminates the contract within the specified period based on a reason of termination for default specified in Article 24 or quits because of mandatory requirements such as military service, serious disease etc. or if the employer terminates the contract unfairly or for a reason not attributable to employee himself/herself.

It should finally be emphasized that employer shall certificate the attendance to the vocational training of employee. Indeed, in cases where employee claims that he/she did not attend to these trainings, Supreme Court expects from the employer to prove the opposite. Consequently, it will be beneficial to issue a document such as an attendance sheet and obtain the employee's signature each time he/she attends to training.


1. Tunçomağ, Kenan: Türk Hukukunda Cezai Şart (Penalty in Turkish Law), İstanbul 1963

2. There are many settled decisions of the Court of Appeals for 9th Circuit such as decision dated February 1, 2011 no. 2010/16335, 2011/1775; decision dated October 6, 2008, no. 2007/27538, 2008/25446; decision dated December 18, 2000 no. 2000/19528, 2000/19045 etc.

3. REHBINDER, Ausbildungskosten, pg. 216; SOYER, Karar İncelemesi (Examination of Decision), pg. 22; EKMEKÇİ, Değerlendirme Semineri (Evaluation Seminar) 1999, p.g..66; ALPAGUT, Değerlendirme Semineri (Evaluation Seminar) 2001, pg. 117;

4. Court of Appeal for 9th Circuit, dated September 19, 2001 no. 2001/10099, 2001/14114

5. BAG, Urteil vom 11.4.1984 - 5 AZR 430/82, AP Nr. 8 zu § 611 BGB Ausbildungsbeihilfe, NZA 1984, s. 288-289.

6. KARAGOZ, Veli, İşçinin Mesleki Eğitimi Tabi Tutulması Durumunda Eğitim Giderlerini Geri Ödenmesi,  Karar İncelemesi (Repayment of Training Costs In Case Employee Is Subject to Training, Examination of Decision)

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.