Introduction

The types and conditions of the employment agreements established between the employee and the employer are regulated in detail in the Labor Code ("Code"). In this context, the differences and characteristics of definite-term and indefinite-term employment agreements will be examined in this article.

What is an Employment Agreement?

Employment agreements are defined in Article 8 of the Code. According to the relevant article, an employment agreement is a written agreement in which the employee undertakes to perform work under the orders and instructions of the employer and the employer undertakes to pay wages to the employee. Although there is no specific formal requirement for employment agreements in the Code, employment agreements with a duration of one year or more are obliged to be concluded in writing.

There are numerous types of employment agreements, and these types are defined and defined in detailed in the Code. Such types include definite and indefinite term employment agreements, full and part-time employment agreements, on-call, and telecommuting employment agreements.

Indefinite Term Employment Agreements

Indefinite term employment agreements are defined in the Article 11 of the Labor Code. According to the relevant article, the agreement shall be deemed to be an indefinite-term employment agreement if the employment relation is not made for a certain period of time. The principle is not to bind the employment agreements to a certain period of time and making it for a definite period of time is an exception. Therefore, if there is any doubt as to whether the employment agreement is for an indefinite or a definite term, the agreement shall be accepted as indefinite term employment agreement. The party claiming that the agreement is fixed term is required to prove its claim.

Fixed Term Employment Agreements

Fixed term employment agreements are defined in Article 11 of the Labor Code which are written employment agreements concluded between the employer and the employee for specified duration or subject to objective conditions such as the completion of a certain work or the occurrence of a certain event. In order to be said to have a fixed term employment agreement, it is required that the agreement is subject to a fixed time period, that it is made in writing and has objective causes.

The existence of objective causes in the agreement is not enough to automatically establish a fixed term employment agreement, because indefinite term employment agreements can also be established under the same conditions if desired. For this reason, in order for the agreement between the employee and the employer to be considered as a fixed term agreement, the fact that the agreement is of this nature shall be understandable by the parties, especially by the employee.1

Objective Causes in Fixed Term Employment Agreements

Firstly, in order for a fixed term agreement to be concluded between the employer and the employee, the duration of the work to be performed shall be objectively foreseeable at the date of the agreement. For example, a fixed term employment agreement shall be concluded in the organization of a concert, an exhibition or in the busy holiday regions in summer, as employees are required for a certain period of time.

Secondly, a fixed term employment agreement may be concluded between the employee and the employer for the completion of a certain work. Some examples of this situation include hiring a worker to complete a certain project from the beginning to the end or hiring a worker to complete only a certain part of a project.

Lastly, a temporary need for workforce may arise in the event of a phenomenon that is not included in the normal activity of the enterprise or out of the ongoing situation. In this way, it is accepted that a fixed-term employment contract can be established in the event that a job arises that cannot be fulfilled with the workers working in the workplace.

Successive Fixed Term Employment Agreements

According to Articles 11/2 and 11/3 of the Labor Code, fixed term employment agreements shall not be concluded more than once in a row, in other words, successively, unless there is a substantial reason. In such cases, the employment agreement shall be considered as an indefinite term employment agreement, effective from the beginning. The substantial cause is not fully explained in the Code and according to the doctrine, it shall be accepted as the same as the objective causes mentioned above.

The Court of Cassation, in general, considers successive employment agreements concluded without an objective/substantial cause as an abuse of the right to conclude an agreement and considers the agreement as an indefinite term employment agreement as a whole from the beginning.2

According to the Code, successive agreements based on a substantial/objective cause retain their fixed term characteristic, however, there is no maximum limit to the successive agreements to be formed in this manner. In this case, the Court of Cassation generally decides that a limit should be set for successive fixed term employment agreements, and that employment agreements that are made in succession for an objectively long period of time should be considered as indefinite term employment agreement.3

Prohibition of Differential Treatment

In a workplace, the employer has an obligation to treat all employees equally and not to treat differently, regardless of the type of employment agreement. Such obligations of the employer are regulated in more than one article of the Law. According to Article 5 of the Labor Code, the employer may not treat a fixed term employee differently from an indefinite term employee unless there are substantial reasons.

According to Article 11 of the Labor Code, an employee with a fixed-term employment agreement shall not be treated differently from his/her counterpart with an indefinite-term employment agreement solely because of the duration of the employment agreement, unless there is a justified reason for such differential treatment. In addition, in terms of wages and divisible benefits related to money, it is also regulated that the employee working with a fixed term employment agreement shall be given in proportion to the period he/she has worked.

In Conclusion

The Labor Code regulates both fixed and indefinite term agreements. In Turkish Law, Indefinite-term employment agreements are the principle and only in the presence of certain objective causes, a fixed-term employment agreement shall be established. Fixed term employment agreements shall not be concluded in succession except in the presence of substantial conditions, nor shall there be any discrimination between employees due to the difference in the type of agreement.

Footnotes

1. Labor Law/SÜZEK 19th Edition, page 248

2. Decision of the Court of Cassation - HGK, E. 2021/762 K. 2022/840 T. 7.6.2022

3. Court of Cassation Decision - 9th Court of Cassation E. 2005/12170 K. 2005/15792 T. 5.5.2005

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.