Under Turkish law, the redundancy compensation is defined as an amount of money which is calculated by considering seniority and the latest wage of the employee which is paid to the employee upon the leave of the employee of the work under certain conditions. To be entitled for a redundancy payment a worker must complete a continuous employment for a period of at least one year. Per the Turkish Labor Law numbered 4857 this redundancy payment has to be paid by the employer when an employee is made redundant and for this purpose it is not important whether the employee has been working under fixed-term employment agreement or not.
An employee may be entitled to receive the redundancy payment upon the existence of the certain conditions recited under the law numbered 4857. However, if the employee terminates the employment agreement upon his/her own will, without any just reason which legitimates the termination of the employment agreement or if it is the employer who terminates the employment agreement with just reasons against the employee which legitimates such termination, then under such circumstances, the employer shall not be under the responsibility of making any redundancy compensation payment.
Under Turkish practice, there exist a common misunderstanding among the public that under circumstances where the employer terminates the employment agreement for "any" reason, the employee may claim the payment of redundancy compensation. Due to this misunderstanding, employees who want to leave their position upon their own will but also want to receive their redundancy payment tend to push the employers to terminate their employment agreement. In such situations one of the common methods used by the employees is being absent in the work without any permission given by the employer.
Per the Article 25/g of the Turkish Labor Law, if the worker does not appear at the work for two working days consecutively or three days separately in a month or two working days which are following of the day off in a month without any permission given by the employer, the employer has a right to terminate the employment agreement without paying redundancy compensation. However, the law does not provide any possibility of termination without the payment of the redundancy compensation if the absence of the employee does not match the exact conditions of the Labor Law. For instance, under circumstances where the employee does not show up one day each month, despite such absence does not base on the permission of the employer, the employer cannot terminate the agreement by relying on the article 25/g of the Labor Law. Again, according to Supreme Court's decision dated 10 February 2004 numbered 10635/1799 the burden of proof in relation to the absence of the employee, the fact that such absence does not base on any fair reason and the absence of the employee does match the conditions determined by the law is on the employer.
Under circumstances where the absence without permission of the employee does not match the conditions provided under the law, despite of the fact that the employer may not terminate the agreement based on the article 25/g of the law, it is always possible for the employer to terminate the employment agreements on the grounds of the breach of the employment agreement. Because the employee by not attending to the work as defined under the employment agreement, even though such non-attendance may not match the conditions of article 25/g, would still be in the breach of the employment contract. So the employer may still terminate the agreement due to such breach. However, the termination of the employment agreement on the grounds of the breach of the employment agreement by the employee also necessitates the strict proof burdens and compatibility with certain procedural rules. Therefore, we are of the opinion that the termination of the employment agreement due to the absence of the employee without any just reason should not be subject to above mentioned repetitive absences. Despite the labor law aims the protection of the employee thus includes provisions for such purpose, it seems the law itself ignores the fact that the employees may act in bad faith some times and there may be a need for the protection of also the employers from the blatant infringement of the employees.
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.
