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.
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