Article 18 of the Turkish Labor Code numbered 4857, namely the
"Employment Protection Act" has changed the employment
environment in Turkey significantly ever since its promulgation in
Although nearly a decade has passed, the Court of Appeals
decisions have only provided the guidelines for termination based
on the performance of the employee.
The referenced act is applicable to the employment contract of
the relevant employee if; the contract is for an indefinite period,
the relevant employee has a minimum seniority of 6 (six) months,
the relevant employee is not a representative of the employer, and
the employer employs 30 (thirty) or more employees.
Undoubtedly, termination of an employment contract should be the
last resort. In view of this understanding the Act requires the
employer to provide the notice of termination stating precisely one
of the termination reasons provided in the referenced act.
Accordingly, the employer terminating the employment contract must
base its grounds on a valid reason arising from the (i) efficiency
(performance) or (ii) manners of the employee or the (iii)
requirements of business, business enterprise or workplace, and a
defense needs to be obtained. In the event the employer does not
abide by these rules, the courts decide for the reinstatement of
As the burden of proof lies with the employer, the Turkish Labor
courts have a general tendency to favor the employee, the
termination process is detailed and complex, and most reinstatement
lawsuits are successful.
In this legal environment, in order to terminate the employment
contract of a poor performer, the employer needs to prove to the
court that the termination based on the performance of the employee
was a valid termination reason.
The condition precedent of proving that the relevant
employee's performance was a valid ground for termination is to
implement a performance evaluation system which is in line with the
guidelines provided by the courts. In other words, the existence of
a performance evaluations system is not sufficient, as it needs to
be a system which is in line with the below principles:
(i) The evaluation system should be based on objective criteria.
Employees who do the same job should be subject to the same
(ii) The criteria and the targets, goals and objectives should
be written and served to the employee by the employer in advance.
These criteria should be discussed and taken into consideration
during a performance evaluation.
(iii) The targets, goals and objective of the employees should
be realistic and reasonable. Failing to reach the goals and targets
may not be a valid reason by itself if the qualifications of the
employee and the determined goals and targets are not
(iv) The lack of performance or performance deficiency should
only be considered upon the continuously realized evaluations.
(v) A performance evaluation system should be created according
to the requirements of the job and qualifications of the
(vi) Performance evaluations should be realized periodically.
The results should be shared with the employee.
(vii) It is the employer's responsibility to take necessary
steps in order to improve the performance of the employee or to
eliminate the poor performance. The employer should also
investigate the reasons behind the performance deficiency and
assist the employee to eliminate the possible factors which causes
the poor performance.
Undoubtedly, the system also needs to be implemented correctly,
fairly and objectively in each and every case.
It should be noted that the above mentioned rules are not
limited and can be extended. Furthermore, the above rules cited
from the precedent court decisions are only general guidelines for
the employers to design and implement performance evaluation
systems. Termination of an employment contract based on poor
performance will continue to be a lingering problem until the
conditions for a valid performance evaluation system are detailed
In the absence of precise rules, employers need to act in good
faith, be objective and transparent, realize the necessary steps
and exert best efforts in order to improve the efficiency of the
employee, duly document every step of the procedure and always
consider termination as the last resort.
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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