Turkey: Importance Of Obtaining Defense Statement In Labor Law

Last Updated: 18 December 2018
Article by Yesim Tokgoz

Turkish Labor Law is a branch of law, the general framework of which is drawn through Labor Law numbered 4857 ("Labor Law") and the related regulations, which subtleties are embedded in Supreme Court practice. Within this field, some procedural actions that are considered to be simple and unimportant may change the outcome of proceedings. In this regard, it can be said that most of the disputes arising from the termination of employment relations are due to the improper implementation of these procedures. In this article, we focus on "defense statement" in these procedural actions, which is considered to be simple, and its importance, in the case of termination of employment contract of indefinite duration.

Obtaining Defense Statement

The basic principle in labor law for employers is to base their decisions on legal grounds and prove their actions. In this context, the lawfulness of the decision to terminate an employment contract is based on whether a defense statement should be taken from the employee or not, and evaluation of this statement. However, in practice, due to the employers' precipitous manner in terminating employment contracts, the content of the defense statement request, timing and evaluation of the statement provided, are not concluded properly, at times, and these cause unintended negative consequences.

However, in accordance with the established caselaw, the employees must be informed of the events and/or instances in which he/she caused negativity/disturbance for his/her employer within a reasonable period of time in order for the employees to submit his/her statements. Within this context, obtaining a defense statement is the beginning and, in fact, the most important stage of the termination process. The Labor Law does not strictly separate the borders of termination with just cause with immediate effect, which does not oblige the employer to pay severance payment, to grant a notice period (or payment of notice in lieu thereof) and the termination with valid reason, which obliges the employer to pay severance, and to grant a period of notice (or to make a payment of in lieu thereof). Furthermore, in the ordinary course of employment relationships, it is not possible to conclude an objective result in every instance. This imposes an obligation to evaluate each case on its own merits and, within the framework of the governing case-law.

Therefore, a transparent and comprehensive termination process allows the employer to make lawful decisions. The information acquired through the defense statement will enable the employer to assess whether or not the termination of employment contract is necessary, and whether the situation is due to a valid reason, or a just cause.

In addition, obtaining a defense statement also helps to implement the principle of ultima ratio, as the statement increases the possibility to find a solution, instead of termination of the employment contract of the employee who caused disturbance. The essential issue is whether the employer acts in good faith and offers any alternative to the employee.

Legal Regulation

Pursuant to Art. 19.2 of the Labor Law, in principle, the employment contract with indefinite duration for an employee cannot be terminated in the absence of his/her defense statement, due to his/her behavior or efficiency. Lack of performance, not fulfilling his/her duties, causing material damages, and/or loss of reputation for the employer, and/or breaching the duty of loyalty, are examples of such behavior or inefficiency.

However, it should be underlined that obtaining the defense statement from the employee, itself, is insufficient grounds through which to lawfully terminate the employment contract. Each case must be evaluated on its own merit and procedure. However, not to obtain the defense statement, itself, shall invalidate the termination and this invalidation shall cause, briefly, reemployment of the employee, with compensation, for the time not worked, to a maximum of 4 months' salary of the employee in the workplaces where job security provisions are applicable, and payment of bad faith compensation in workplaces where the job security provisions are not applicable.

Exceptions

The second sentence of Art. 19.2 of the Labor Law regulates the exception of obtaining a defense statement, stating that upon the behavior of the employee that is contrary to ethics and good faith rules (counted in Art. 25.II of the Labor Law), and which grants the employer the right to terminate the employment contract with immediate effect, obtaining a defense statement is not required. This regulation is subject to many contradictory Supreme Court decisions. Several decisions find the existence of the situation counted in Art. 25.II sufficient in order not to require a defense statement; whereas, some decisions evaluate the termination reason in detail, and seek a defense statement even if the situation is within the scope of Art. 25.II as the determination whether the reason is valid or just is at the sole discretion of the Courts. In practice, the Courts determine the grounds for termination by evaluating each situation, and decide which are not powerful enough to be used as just cause, but are sufficient to end the employment relationship as valid reasons. Within this scope, as a defense statement is required for the terminations for valid reason, the absence of this statement causes the invalidity of the termination.

Moreover, Supreme Court has contradictory decisions regarding absenteeism, as well. Pursuant to the Art. 25.II.g., the absence of the employee, without a valid reason or obtaining permission from his/her employee; i) two business days, consecutively, ii) the day after a holiday twice within one month, or iii) three business days within one month, are just causes for termination with immediate effect. The strict application of the rule regulated under Art. 19.2 does not seek a defense statement. However, the Supreme Court decided in several of its decisions that a defense statement is obligatory due to the investigation obligation of the employer in order to determine whether or not there is a valid reason for its employee's absence.

Conclusion

The contradictory Supreme Court decisions oblige us a detailed legal evaluation in each case. A defense statement is the corner stone of a lawful termination decision. Within this scope, the content and the timing of the defense statement request, and the evaluation of the defense bearing the facts of the situation, play a crucial role. If these stages are fulfilled prudently, the employees' rights, arising from the labor law, are protected, and the employers are not faced with unexpected compensation and litigation costs. Thus, in order to prevent and/or decrease conflicts arising from the labor law, the termination procedure shall begin with preparing a proper defense statement request, and each case shall be evaluated, in detail, in accordance with the legal provisions and jurisprudence.

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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