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

Last Updated: 16 April 2012
Article by Fatih Isik


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.

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”

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
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.