As soon as a dismissed employee filed a reemployment lawsuit filed by a dismissed employee against his employer before the Gebze 6th Labor Court of First Instance ("Court") with file number 2017/324 E., the Court rendered an unexpected and highly significant decision by amending the type of termination subject to the dispute at its own discretion, and thereby potentially positioned this case at the very center of a hotly debated topic, i.e., ex officio conversion of termination for cause to valid termination.

As for the background of the case at hand, it was alleged that the employee had displayed a disrespectful and aggressive attitude at work (e.g., kept chewing gum) and had exhibited severe disobedience by acting in a hostile manner against the employer, despite several warnings. Accordingly, the employer immediately terminated the employment agreement of the employee, without first obtaining a written defense letter or issuing a warning letter, as per Article 25/II/b of the Labor Law No. 4857 ("Law No. 4857"), and thereby engaged in what is known as "for cause termination." The employee then applied to the Court and requested his re-employment to his position at work, on the grounds that the employer had unlawfully invoked Article 25/II/b of the Law No. 4857 in his case. The Court partially accepted the lawsuit on the merit that the employee's alleged actions had only breached the employment contract to the extent that the termination would constitute valid termination under Article 18 of the Law No. 4857, rather than for cause termination. Nevertheless, in deciding that this had been a valid termination, the Court did not require the employer to have carried out the strict termination procedures that are normally necessary for a valid termination.

In light of the foregoing, one may inquire as to whether the Court should have also sought the fulfillment of the termination procedures that must ordinarily be completed by the employer in order for a termination to be deemed a "valid termination". This question is highly significant, given the fact that almost all re-employment lawsuits that are initiated under Turkish labor legislation following a termination that is based on valid reasons result in favor of the employee, because it is often not possible for employers to comply with the strict procedural requirements or meet the stringent criteria set forth by the Labor Law and by the precedents of the Court of Appeals. Therefore, one can reasonably ask, when there is such an amendment by the courts regarding the type of termination, whether the court should also examine, for instance, if the employer obtained a written defense or provided guidance to the employee in order to eliminate the bad behavior, or followed the ultima ratio ("last resort") principle for termination, all of which are only applicable and required for valid dismissals. Or, alternatively, one may argue that the court should simply change the type of termination on its own (ex officio) without expecting the employer to follow the strict procedural rules for valid termination, since the employer initially intended to terminate the employee for cause, which does not obligate an employer to follow the above-mentioned procedures for valid termination.

There are two main perspectives on this highly controversial topic, which can be pitted against each another. On the one hand, one may argue that the employer should not be penalized for miscalculating the gravity of the offense and choosing the wrong type of termination (i.e., picking for cause termination rather than valid termination), and should be allowed to decide not to continue the employment relationship when there are sufficient reasons for valid termination. On the other hand, it could also be argued that this would enable employers to circumvent the law, so that an employer could always opt for termination for cause instead of valid termination, in order to avoid the strict procedural rules to be followed for valid termination, and just request from the court, if need be, an ex officio amendment to the termination type, and thereby judicially validate its dismissal without complying with the required termination procedures.

In this case, the Court picked the first approach, which was entirely in favor of the employer, thus reaching an unusual conclusion. This decision was particularly atypical in light of the fact that, for most controversial labor law disputes, it is often more expedient and widely adopted by the Court of Appeals as a well- established principle to make an interpretation in favor of the employee while deciding on the merits of the case.

Consequently, the Court's decision in this case might set a precedent that, when a court changes the type of termination in a labor dispute between an employer and an employee, it should not seek to determine whether or not the procedural requirements for termination have been met, but simply rule for valid termination. However, a reasonable claim can also be made for the alternative, as this approach may pose the risk of allowing employers to circumvent the labor laws and evade their obligations under the law. Considering the differing approaches and perspectives on this matter, the optimal solution may be to evaluate this matter on a case-by-case basis.

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

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