It has long been established in the Turkish labour law under
art. 109 of the Turkish Labour Code no. 4857 that all notifications
under the Labour Code must be made in written form, including the
notices of termination of employment agreements. Notwithstanding
this, the Code does not declare every termination invalid in the
absence of a written notice per se. The type of termination has an
important role in determining whether a written notice is actually
In workplaces, where job security provisions do not apply,
termination with a written notice is not a requirement but a
necessity in terms of proving that the termination has been duly
notified. The employment security provisions in art. 18-21 of the
Labour Code stipulates for stricter conditions and a specific
procedure for the termination of the employment agreements of
employees that work for an indefinite term and who have a seniority
of at least 6 months in a workplace that employs 30 or more
employees. According to the employment security provisions,
notification of the employee in written form is a requirement in
order for the termination to be deemed valid.
On the other hand, when termination is due to an employee's
act contrary to morality and good faith, employers tend to act
hastily in the heat of the moment and skip over written
notification. This did not pose a problem during the term of the
former Code of Obligations (No. 818) since no specific requirement
was provided for termination as per art. 25 of the Labour Code,
which lists the grounds that entitle the employer to terminate the
employment agreement on justified grounds. Despite that art. 25 had
made reference to particular employment security provisions, there
was uncertainty on whether the requirement provided under art. 19
of the Labour Code, which requires the termination to be notified
in written form, would apply if the contract was terminated as per
art. 25. With the entry into force of the Code of Obligations no.
6098, a new provision with a potential to override the said caveat
has been introduced. According to art. 435 of the Code of
Obligations, in terminations performed on justified grounds, the
employee must be notified of the termination and its grounds in
written form meaning that verbal notification would result in the
termination being declared invalid or unjustified.
Although the Labour Code is a specialized piece of legislation
compared to the Code of Obligations, the scholars are keen to apply
art. 435 of the Code of Obligations rather than art. 19 of the
Labour Code given that the legislators have intended to make a
reform to solve the difficulties in practice and to establish a
consistency in terms of termination of contract. The fact that art.
435 of the Code of Obligations has come into force later than art.
19 of the Labour Code is another reason for the application of the
new provision. Some leading scholars in Turkish labour law have
immediately adopted this stance even though the Court of Appeal has
yet to establish a unified precedent to shed light on the
application of art. 435.
Now that verbal notification has the potential of rendering the
termination invalid or unjustified, employers are recommended to
use written form in terminating employment agreements.
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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