In accordance with the definition in Article 11 of Labor Code ("Labor Law") No. 4857, "The contract is considered as indefinite when the dealings are not done in accordance with a specific time. The written employment contract that is held between the employer and the employee is called a 'fixed-term employment contract' when it is based on objective conditions, such as fixed-term work, or the completion of a certain job, or the emergence of a fact." As is seen from the definition, the main objective is to enter into indefinite-term employment relationship. However, due to various objective reasons, it can be also a fixed-term employment relationship.
The Notion of Fixed-Term Employment Contract
An employment contract can be definite or indefinite, and this is based upon whether the expiration time of the contract is determined by the parties or not. In other words, the parties, through determining the expiration date of the contract, can bind the validity of the contract to a certain duration, in order to ensure completion of the contract without the need for notice of termination. In short, fixed-term employment contracts are subject to a term prescribed by the parties, without any notice, and automatically end on the expiration date. This type of contract's expiration date is known by the parties from the outset.
Prohibition of Discrimination in Fixed-Term Employment Contracts
In employment relations, prohibition of discrimination primarily includes language, race, color, sex, disability, political opinion, philosophical belief, religion and sect based distinctions, but it is not limited to them. In 5/2 numbered Article of the Labor Law, 'The employer cannot make different agreements with full-time workers from part-time workers or indefinite-term workers as opposed to fixed-term workers unless there are employer-based reasons.' Therefore, no distinctions can be made between those workers who are subjected to different labor contracts with this provision.With the regulation in question, the employer is obliged to exhibit equal treatment towards the workers who are subjected to different labor contracts.
After this general regulation that is related to the prohibition of discrimination, in the Article 12 of the Labor Law, 'Due to the duration of the contract, the employee who works with a fixed-term employment contract cannot be treated differently according to an equivalent employee who works with a permanent employment contract, unless there is a justifiable reason for discrimination. To an employee with a fixed-term employment contract, payment and pecuniary divisible benefits that are granted through a fixed time as a criterion are paid according to the working time of the employee. While seeking seniority in the same workplace or enterprise in order to benefit from a working condition, the same seniority conditions imposed upon the employee with an indefinite-term employment contract will be given to the employee with a fixed-term employment contract, unless there is a justifiable reason to implement different seniority. An equivalent employee is the employee who works in the same or similar job through an indefinite-term employment contract. If such an employee does not exist in that workplace, then an employee with an indefinite-term employment contract who works in the same or similar job in the same branch, in accordance with the conditions, will be taken into consideration.'
This provision states that no distinctions can be made between employees with fixed or indefinite-term employment contracts.Two notions are remarkable in this provision. The first one is the principle of proportionality that relates to fees. This principle establishes equal treatment between the employees by proportioning benefits related to payment and pecuniary issues.Another remarkable issue in this article is the equivalent employee notion. While determining equivalent employees, if they exist, the Law primarily demands that an employee with an indefinite-term employment contract from the same workplace be considered to be an equivalent employee. If there is no like employee, the Law states that an employee with an indefinite-term employment contract from the same or similar branch will be considered to be an equivalent employee.
Form of Fixed-Term Employment Contract
Article 8/2 of the Labor Law states that "If the employment contract's validity is one year or more, it must be in written form." After this general regulation for all of the employment contracts, Article 11 of the same Law includes the provision, "The contract between an employee and employer in written form is called a fixed-term contract that is subject to objective conditions, such as fixed-term work or completion of specific work, or occurrence of a certain event." While Article 11 stipulates that fixed-term contracts must be in written form, Article 8 stipulates that employment contracts must be in written form, if the term of validity is one year or more. These differences between the two Articles lead to different opinions in doctrine. According to one opinion, in doctrine, it is imperative that fixed-term employment contracts be written form, even if their validity periods are less than one year; another opinion is that fixed-term employment contracts are not required to be in writing if their validity is less than one year. In our opinion, regardless of the duration, as is provided in the Law, all fixed-term employment contracts are to be in written form.
Determination of Period in Fixed-Term Employment Contract
The presence of fixed-term employment contract arises when the parties determine a period for the contract. This is possible if objective conditions exist. Without objective conditions, fixed-term employment contracts cannot specifying only a period of time. The format of the contract period may be set forth as follows.
Determination of the Definite Duration
During the course of a project, if any technical personnel are to be employed, and if the termination of the project can be predicted, duration of the project can be determined between the parties, or the duration can be understood set out in the contract. In other words, determining the duration of fixed-term employment contracts is only possible through pre-definition. However, fixed-term employment contracts may be entered into when other conditions as stated in the Labor Law have occurred.
Determining the Duration Implicitly
In situations when the duration is not definite or identifiable, the duration may be determined based on the purpose of the work. But again, the objective conditions must be suitable for the specific contract. For instance, determining the duration based on the purpose of the contract is possible while recruiting during high summer season.
Termination of Fixed-Term Employment Contract
Mutual Rescission (Termination of the Contract with Convention of the Parties)
Regardless of whether the contract is definite or not, it can be terminated at any time when the parties mutually agree thereto. The parties may terminate the fixed-term employment contract through their common will, like indefinite-term employment contracts. The parties may terminate the contract immediately, or agree mutually to terminate, after a certain period of time. The mutual agreement of the parties to terminate the contract does not constitute termination. Therefore, a termination notice period will not be applied as no termination will result.
Expiration in Fixed-Term Employment Contracts
In fixed-term contracts, these shall be automatically terminated upon the agreement of the parties.
Termination
Each of the parties has the right to terminate the contract prior to the expiry date agreed in fixed-term employment contracts. Termination of employment contracts may be declared or immediately terminated upon justification. These two types of termination differ in expiration, and the results thereto. As a rule, the right of temporary termination is in question for indefinite-term employment contracts. However, temporary termination rights with respect to agreed decisions that one party is subject to throughout life of the contract, or more than ten years, constitutes an exception to this rule.
An immediate termination right is may be effected for both fixed-term and indefinite-term employment contracts. The rightful immediate termination may only be possible when the employee and the employer have separate justifications as regulated in the Labor Law. These justifications can be summarized as the reasons that have led the business relation to be impossible for one of the parties.
Conclusion
Indefinite-term employment contracts are provided for in the Labor Law, if there are objective criteria, and, as well, if there is an opportunity to make fixed-term employment contracts. However, even though there are objective conditions specified in the Labor Law, the parties can make indefinite-term employment contracts instead of fixed-term employment contracts. As well, even if there are objective conditions, fixed-term employment contracts cannot be made more than one successively (continuously) unless there is substantial reason Otherwise, an employment contract will be considered to be indefinite from the outset.
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.
