In principle, the termination of an employment agreement is considered to be a last resort in labor relations in Turkey, where employers are obliged to make a sincere effort not to terminate the employment agreements of their long-term employees. This rule is called the "ultima ratio" (literally, "final argument" or "last resort") principle and governs the entirety of Turkish labor law. Therefore, the termination of an employment agreement has become an issue that is widely regulated and strictly controlled by the legislator under the Labor Law No. 4857 ("Labor Law").

Article 18 and et seq. encompass the job security provisions of the Labor Law, regulating the fundamental rules for a valid termination, and thus are at the forefront of securing the employee-protective approach adopted under the Labor Law. The job security provisions provide legal protection to employees from arbitrary termination that is unilaterally initiated and executed by employers. As to the job security provisions, employers are required to strictly follow the termination procedures set forth under the said articles, and if they fail to do so, employees will be entitled to bring such termination actions to the courts for judicial review, and they will be allowed to petition the court for the invalidation/annulment of the termination decision and their reinstatement to their job positions as well. However, not all employees are entitled to benefit from these expansive job security provisions. Only employees whose specific qualifications are included and stipulated under the Labor Law enjoy the protection of the job security provisions. To that end, only those employers who employ at least thirty (30) employees are obliged to provide a valid reason/basis for terminating an employee who has worked for the employer under an indefinite-term employment contract for at least six (6) months. The prerequisite of a minimum tenure of six months before the "valid reason" clause for termination kicks in has recently become a hotly debated topic, as employers have started to terminate the employment contracts of their employees one day before the date on which the employee would have reached six months of seniority, for the obvious purpose of avoiding the job security provisions of the Labor Law.

The Court of Appeals has long adopted a skeptical approach to this type of behavior on the part of employers and has displayed an antagonistic attitude against employers on this matter. The Court of Appeals has stated in numerous decisions that this specific method of termination with such particular (not to say, exquisite) timing is contrary to the fundamental principle of good faith, and that an employee who is fired in this manner should be deemed to have attained six months of seniority, which would therefore make him/her a beneficiary of the job security provisions, and allow him/her to take advantage of those provisions, by operation of law. (See, for example, the 9th Chamber of the Court of Appeals decision dated 01.04.2013 and numbered 2013/35856 E. and 2013/10606 K.; 9th Chamber of the Court of Appeals, decision dated 14.02.2011 and numbered 2011/474 E. and 2011/2785 K.)

The Court of Appeals explained in its ratio decidendi that it is of utmost importance to ensure the safeguarding of employees from malicious and bad-faith termination methods, even if they are not necessarily used for the purpose of circumventing the law, that may be utilized or implemented by the employers.

However, the 9th Chamber of the Court of Appeals, in its more recent decision of November 09, 2017 (2016/28920 E. and 2017/17860 K.), seems to have modified its prior decisions, which may therefore lead to an overturning of its precedents on this controversial issue. In this recent case, the court did not presume in advance that the employer who terminated its employee's employment contract one day before the day on which the employee would have completed six months on the job had violated the principle of good faith. On the contrary, the court appeared to demand to see some probative evidence, submitted by the employee, demonstrating that the employer had, in fact, maliciously terminated the employment contract, in order to rule in favor of the employee.

Unless this case was a singular decision or one-off exception, one may argue that, in light of this decision, not all terminations occurring just before the date on which employees would have attained six months of tenure on the job will be deemed as malicious. Rather, this decision seems to indicate that the rationale behind each dismissal should be closely scrutinized, in order to ensure that an employer's actual objective is not to avoid being subject to the job security provisions of the Labor Law. If the court is satisfied that the termination of the employment contract was carried out in good faith and not for the purpose of sidestepping the applicability of the job security provisions, this decision implies that the employer should be allowed to terminate the employment contracts of its employees, without being subject to the strict procedures set forth under the Labor Law.

Consequently, the 9th Chamber of the Court of Appeal's decision in the above-mentioned case may lead to an increasingly tolerant judicial perspective in favor of employers in termination cases, such that employers may rightfully and legally terminate their employees' employment contracts, even if the termination date is only one or two days before the date on which the dismissed employee would have reached six months of seniority on the job.

This article was first published in Legal Insights Quarterly by ELIG, Attorneys-at-Law in March 2018. A link to the full Legal Insight Quarterly may be found here.

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