Turkey: Termination Of The Employment Agreement With Valid Reason On The Basis Of Incapacity Of The Employee


Employment agreement creates a constant relation between the employer and the employee and imposes contractual duty on employee to serve to a satisfactory level. Since the employment agreements create constant relations between the parties, the agreements are concluded, in principle, for an undetermined term. The agreement for a determined term may be concluded only in some exceptional cases. Art. 11 of the Labor Act numbered 4857 ("LA") stipulates that the agreements in which the term is not stated shall be deemed as is concluded for an undetermined term. The same article states also the cases in which the employment agreement can be concluded for a determined -or fixed- term. Pursuant to said article, an employment agreement for a determined term can be concluded only if the agreement is concluded for a work which has a specified term or for a specific work or the work is based on the emergence of objective conditions; otherwise, the agreements for determined period cannot be concluded.

The fixed-term agreements, which are duly concluded, expire automatically once the term agreed for the agreement is reached. The fact whether the agreements are "duly" concluded for a determined term presents its importance in Article 11(2) of LA. Pursuant to said article, an employment agreement for a definite term 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 undetermined term from the very beginning.

However, since there is not a fixed term for the agreements for an undetermined term, it is not possible to accept that the parties are bound by the agreement forever. As a solution, it is accepted that the agreements for an undetermined term may be terminated in some cases being subject to some procedural requirements.

Valid Reason for Termination of the Agreement

The termination of the employment agreement for an undetermined term by the employer is subject to existence of valid or just reason. However, the employee may terminate the agreement without any just or valid reason provided that the employee fulfills the legal procedural requirements. The agreement may be terminated immediately in case of a just reason whereas the termination for valid reason must be notified to other party granting the time periods stipulated in LA. In this concept, the termination for just reason is defined as "abrupt termination" and the termination for valid reason is defined as "termination by notice". Hence, the party who wishes to terminate the agreement shall notify the other party regarding the termination of the agreement with reasonable period of notice.

The concept having effect on the legislation regarding the proper process of termination of the employment agreement by the employer for valid reason is the concept of "job security", which is accepted in Turkish Labor Act, with Act numbered 4773 and effected the LA. The aim of the job security is to uphold the rights of employees and set legal boundaries to how and in what circumstances an employer can terminate the contract by giving notice. As an effect of the job security concept, the employer shall respect the time periods and have a valid reason for termination.

The LA does not determine what the valid reasons may be; however, it is stated in Article 18 of LA that the valid reasons shall arise from the behaviors or the capacity of the employee or from operational requirements of the enterprise, work place or work.

Even though the valid reason is not defined within the article, the valid reason may be explained as the reasons, which have negative effects on conduct of the work and work place and which are not as serious as the reasons stated in Article 25 of LA.

Underperforming as a Valid Reason for Termination

One of the most prominent valid reasons for termination of the employment agreement is incapacity of the employee. The incapacity of the employee may be due to professional incompetence or physical incapacity. For instance, the continued ill health may be accepted as physical incapacity whereas continued unsatisfactory performance or inability of the employee to work according to requirements of job may be accepted as a professional incapacity. The valid reasons and especially underperforming is not clearly regulated under the legislation and the details of its implementation are constructed by the court decisions.

As stated by the 9th Civil Chamber of High Court of Cassation in several decisions, the criteria for underperforming must be based on objective principles for a just termination of the agreement on valid reasons. Pursuant to the judicial precedents, the criteria must be determined being particular to that work place and the underperforming shall be evaluated considering also other employees at the same work place. The criteria must be, indeed, realistic and reasonable for a duly termination of the agreement. As a main requirement by the courts, it should be stated that the criteria must be determined before the termination and the employee must be notified by these criteria. Yet, is not possible to terminate the agreement on the basis of incapacity of the employee of which the employee is not aware of.

It should be also added that, sole existence of a valid criteria and of the fact that the employee is underperforming, shall not be sufficient for termination of the employment agreement. Hence, the underperforming of the employee should cause negative effect for conduct of the work in the work place. This requirement arises from the justification of the Art. 18 of LA which defines valid reason as "the reasons which have negative effects on conduct of the work and work place and which are not as serious as the reasons stated in Art. 25 of LA." Also the precedents of the High Court of Cassation require existence of negative effect for a just termination of the agreement on valid reasons.


The incapacity of the employee and their underperformances as a valid reason for termination of the agreement is not explained in detail within the legislative texts. Therefore, existence of valid performance criteria and subsequently existence of a just termination of the agreement shall be evaluated separately for each case considering the precedents of the courts.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Kolcuoglu Demirkan Kocakli Attorneys at Law
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Kolcuoglu Demirkan Kocakli Attorneys at Law
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions