Who is the Employee and Who is the Employer?
An employee is a person who is in an employment relationship with the employer under an employment contract and is obligated to perform a specific task in exchange for wages. The employer, on the other hand, is a natural or legal person, or an entity without legal personality, who employs the worker based on the employment contract and is obliged to pay a specified wage to the employee in return for their work.
With the establishment of the employment contract, the employee will have obligations such as performing the work, loyalty, complying with the employer’s orders and instructions, and refraining from competition. The employer’s obligations, on the other hand, will include paying wages, treating the employee equally, protecting and supervising the employee, and other responsibilities.
The termination of the employment contract refers to the situation where a legal agreement established between the employee and the employer by their free will ends due to a specific reason or in accordance with the mutual agreement of the parties. The employment contract is established by the free will of the parties, and similarly, the parties can terminate the contract through mutual agreement. The termination of the contract usually occurs due to reasons such as dismissal.
The employee can leave the job at their own discretion. In order for the employee to be entitled to compensation, the reason for the termination of the employment contract between the parties, as explained, is of significance.
What are the cases in which an employee can terminate their employment contract for just cause?
The cases in which an employee can terminate their employment contract for just cause are regulated in Article 24 of the Turkish Labor Law No. 4857. In this regard, the employee:
Due to health reasons
For example, the work being dangerous to the health or life of the employee due to the nature of the job, or the employee being in constant close contact with the employer or another employee who has contracted an infectious or work-incompatible disease.
In cases where the employee fails to comply with the rules of ethics and good faith.
For example, misleading the employee by the employer on essential points of the contract in a way that damages the trust relationship between the employer and the employee.
The employer making remarks that damage the honor and reputation of the employee or their family members.
In relation to the subject, in the decision of the General Assembly of Civil Chambers (YHGK) dated 20.11.2018 and numbered 2018/703E. 2018/1749K.
“… According to Article 24, paragraph (II), subparagraph (b) of the Labor Law No. 4857, if the employer insults the employee or a family member, commits an act of swearing, engages in harassment, or behaves in a way that would harm the employee’s honor or reputation, the employee is entitled to terminate the employment contract for just cause. It does not change the legal outcome if the act is committed by the employer or a representative of the employer. It is not necessary for these actions to be considered a crime under the Turkish Penal Code.
If a word, action, or behavior that harms the honor or reputation of the employee or a family member is committed by another employee of the employer, it generally does not give the employee the right to terminate the employment contract for just cause. However, if the employer is aware of such words or behaviors that harm honor or reputation, it is the employer’s obligation to take the necessary precautions to prevent the act from recurring as part of the employer’s duty of care for the employee.
In this specific case, the plaintiff employee stated in the petition dated 03.03.2010 that they terminated the employment contract due to insults from the workshop supervisor. As mentioned in the above paragraph, if the act harming honor or reputation is committed by another employee of the employer, it does not normally grant the employee the right to terminate the employment contract for just cause. Based on the file, it is not proven that the plaintiff employee informed the employer about the actions of the non-party employee before the termination date and requested necessary precautions. Therefore, the termination does not rely on just cause. For this reason, the rejection of the severance pay request instead of its acceptance with a written justification was erroneous and required reversal…”
The employer’s failure to take necessary precautions, resulting in a third party sexually harassing the employee.
>>In relation to the issue, in the decision of the 22nd Civil Chamber of the Court of Cassation dated 25.11.2014, with case number 2014/23315E. – 2014/33270 K.
“…In cases where an employee is sexually harassed by another employee or a third party, this situation must be reported to the employer in accordance with the law, and necessary precautions should be requested. If the employer is aware or could be aware of the sexual harassment incident, the employee is not required to report the situation again. The employer’s precaution should be aimed at preventing the recurrence of the incident the employee was exposed to. If the precaution is insufficient, the employee has the right to terminate the contract for just cause. According to the justification of the article, depending on the severity of the harassment, terminating the harasser’s employment is also included among the precautions the employer must take.
With Article 417 of the Turkish Code of Obligations No. 6098, it is stipulated that “The employer is obliged to protect and respect the personality of the employee in the service relationship, ensure a workplace order in compliance with the principles of honesty, and take necessary precautions to prevent employees from being subjected to psychological and sexual harassment and to prevent further harm to those who have already been subjected to such harassment.”
In the case at hand, the plaintiff employee stated in their written termination notice dated 13.09.2011 that the harassment incident they experienced had not been addressed by the employer, they were continuously harassed, their family life and psychology were negatively affected, and a peaceful work environment had not been provided. The decision of the Koçarlı Peace Penal Court, dated 28.12.2011, with case number 2011/44 and decision number 2011/101, found that Osman I…, another employee of the defendant employer and also the son of a Cooperative Board member, had committed the crime of sexual harassment against the plaintiff and sentenced the defendant according to Article 105/1 of the Turkish Penal Code No. 5237. The incident occurred in March 2010.
The court ruled that the statute of limitations had expired. While the termination date was 13.09.2011, and the incident referenced in the criminal court decision occurred in March 2010, the plaintiff’s claims are based on the employer’s failure to take any precautions and the continued occurrence of verbal harassment.
It is established from the testimonies of the plaintiff’s witnesses that the plaintiff’s spouse and father-in-law had repeatedly met with the employer’s officials to report the harassment verbally and request that necessary precautions be taken. Also, a former employee, M. T., stated that they noticed Osman I.’s interest in the plaintiff, and most people in the workplace were aware of this situation, implying that the issue was known at the workplace. However, the defendant employer did not provide any information or documents regarding actions taken against Osman I…, such as initiating a disciplinary investigation or taking any preventive measures. On the contrary, the plaintiff was frequently assigned as a cashier in the employer’s market, despite being an accountant, and was forced to work in the same environment as the perpetrator. It was also stated by the plaintiff witness that the meetings with the employer’s officials were inconclusive and that the plaintiff was forced to leave the job to prevent further incidents. Despite this, the employee was left unprotected against the possibility of the perpetrator repeating their actions, and it is clear that the employer is at fault. The lack of a written complaint to the employer regarding the issue does not absolve the employer from their obligation to take necessary precautions in this situation.
On the other hand, the plaintiff claims that the harassing behavior continued until the date of termination. The plaintiff’s spouse also testified that the plaintiff returned home crying and had to quit the job. Given the nature of harassment, which often occurs in private, between the perpetrator and the victim, it cannot be accepted that the act must be proven solely through eyewitnesses. Based on the case file, it is established that no precautions were taken by the employer to protect the plaintiff from potential further harassment at the workplace, and the plaintiff’s claim of being sexually harassed without cause, which could affect their personal and work life and lead to rumors, is contrary to the natural course of events.
For these reasons, the termination of the employment contract is based on just cause, and the statute of limitations has not expired. The decision to reject the plaintiff’s claim for severance pay, with written reasoning, is erroneous and requires reversal…”
Mobbing applied to the employee at the workplace.
>>Regarding the issue, in the decision of the 9th Civil Chamber of the Court of Cassation, 2008/375E – 2009/15531K.
“From the case file and the evidence collected, it is understood that the claimant was previously subjected to insults by their supervisor while working in the trousers section, was subjected to psychological harassment (mobbing), and as a result, was transferred to the jacket section. Reassigning the employee to the same section again gives the employee the right to terminate the contract for just cause. Therefore, the claimant’s request for severance pay should be granted, and the defendant’s request for notice compensation should be rejected. The written ruling is incorrect.”
The employer’s failure to pay the employee’s salary in full or not paying it at all.
>>In relation to the matter, in the decision of the 7th Civil Chamber of the Court of Cassation, dated 2013/1449 E., 2013/2406 K.
“…In case of non-payment of entitlements such as bonuses, commissions, fuel assistance, clothing assistance, overtime, weekly leave, and public holidays, the employee has the right to terminate the contract for just cause.”
Even if the employer makes full and complete payment of wages to the employee, if the salary declared to the Social Security Institution (SGK) is shown as less than the actual amount, and if social security premiums are either not deducted or not paid at all.
>>Regarding the issue, in the decision of the Supreme Court General Assembly (YHGK) dated 18/03/2015, with the case number 2013/22-1771E. – 2015/1051K.
“…For the employee who claims to have been absent and resigned, the underpayment of SGK premiums and the failure to pay for overtime and public holiday work constitute a just cause for termination…”
The emergence of compelling reasons that would cause the work at the workplace to stop for more than a week.
What are the conditions for severance pay
The Labor Law provides that severance pay can be paid to employees who leave their jobs for a just cause. Just causes are specified by the Labor Law, and this regulation includes certain conditions for employees to be eligible for severance pay.
>>There must be employment under a contract subject to the Labor Law: The work in question must be based on an employment contract. Severance pay under the law will not apply to work outside the scope of the Labor Law.
>The employment contract must end in a way that allows for severance pay.
a. Automatic Termination of the Contract: In the event of the employee’s death during the continuation of the employment contract, the legal heirs of the employee have the right to claim severance pay from the employer.
b. Termination by Dismissal: Under Article 24 of the Labor Law, just causes that grant the employee the right to immediate dismissal are regulated. These reasons include “health reasons,” “acts that violate moral and good faith principles,” and “compelling reasons.” According to the Labor Law, if the employee voluntarily resigns without any valid reason, they do not have the right to compensation. However, if the employee resigns based on a just cause (terminating the employment contract according to their own will), they may be entitled to severance pay.
>The condition of at least 1 year of seniority must be met.
Is severance pay awarded if the employee terminates the employment contract in certain situations without relying on just cause?
Severance pay is granted to employees who have at least one year of service. An employee who does not meet the duration condition is not entitled to severance pay. Although the law stipulates that an employee may be entitled to severance pay if they terminate the employment contract based on just cause, severance pay may also be awarded in cases where the employee terminates the contract in certain situations without relying on just cause. However, this situation is explicitly (limitedly) outlined in the legal regulations.
A woman who gets married and terminates the employment contract within one year will be entitled to severance pay.
An employee who leaves the job for military service will be entitled to severance pay according to the law.
An employee who retires upon reaching the retirement age will be entitled to severance pay according to the law.
Calculation of Severance Pay
Once the employee’s length of service is determined, the last gross monthly salary received by the employee at the time of separation is identified. This amount will be the basis for the severance pay calculation. For each year of service, the employee is entitled to one month’s gross salary. If the employee receives additional payments such as transportation, meals, bonuses, or other allowances, these will also be included in the gross monthly salary calculation and added to the total amount. The number of years the employee has worked is multiplied by the last month’s gross salary to calculate the severance pay.
However, the gross monthly salary used for the calculation cannot exceed the severance pay ceiling. The severance pay ceiling is based on the amount of the annual retirement bonus granted to the highest-ranking civil servant (President of the Presidency’s Administrative Affairs). The severance pay ceiling is set every year in January and July and applies to the relevant period. For the second half of 2024, the severance pay ceiling is 41,828 TL.
In summary, no matter how high the employee’s gross monthly salary is, the severance pay calculated for one year’s service cannot exceed the ceiling amount. For example, if the gross monthly salary is 40,000 TL and the employee has 5 years of service, the severance pay will be 200,000 TL. However, if the employee’s gross salary is 60,000 TL and their service is 5 years, the severance pay will be 209,140 TL, not 300,000 TL.
It is possible for the employer and employee to agree on a severance pay amount that exceeds the established ceiling. However, in this case, while severance pay is normally exempt from income tax, any amount exceeding the ceiling will be subject to taxation.
What is Notice Pay?
Notice pay is a compensation that the party terminating an indefinite-term employment contract without a valid reason and without giving proper notice must pay to the other party. Accordingly, notice pay should be paid if the employment contract is terminated without relying on the reasons specified in Articles 24 and 25 of the Law, and if the proper notice period, as stated in Article 17, is not granted.
Moreover, even if there is a valid reason for termination, if the employee or employer proceeds with termination after the expiration of the limitation period set forth in Article 26, the party terminating the contract will be obligated to pay notice compensation to the other party.
>>Conditions for Notice Pay<<
>>There must be an indefinite-term contract. In the case of a fixed-term contract, notice pay cannot be requested. In this regard, the decision of the 9th Civil Chamber of the Court of Cassation, dated 2001/2226E. – 2001/5892K, states:
“… The plaintiff worked with a fixed-term contract at the defendant’s workplace under the Private Educational Institutions Law No. 625. In this case, the relationship ended at the expiration of the term, and since notice pay does not apply in fixed-term contracts, the request should be rejected…”
>>There should be no just cause for termination from either the employee’s or the employer’s side.
In relation to the issue, in the decision of the 7th Civil Chamber of the Court of Cassation numbered 2013/1449 E., 2013/2406 K., it was ruled that: “Even if there is just cause for termination, if the employee or employer proceeds with termination after the expiration of the time limit specified in Article 26, the party will be required to pay severance pay. Severance pay is compensation that the party terminating the employment contract must pay to the other party, and therefore, even if the termination is based on just cause, the terminating party is not entitled to severance pay. If the employee terminates the employment contract due to reasons such as retirement, compulsory military service, or marriage, according to Article 14 of the Law No. 1475, the employee does not have the right to claim severance pay. In such cases, the employer is also not entitled to claim severance pay.”
>>The employment contract must be terminated without complying with the notice periods specified in the law. The notice periods are the durations that begin to run from the moment the termination notice reaches the other party, whether by the employer or the employee. These periods vary according to the length of time the employee has worked at the workplace, as specified in the law.
These periods are:
a) For an employee whose employment lasted less than six months, the notice period starts two weeks after the notice is given to the other party.
b) For an employee whose employment lasted from six months to one and a half years, the notice period starts four weeks after the notice is given to the other party.
c) For an employee whose employment lasted from one and a half years to three years, the notice period starts six weeks after the notice is given to the other party.
d) For an employee whose employment lasted more than three years, the notice period starts eight weeks after the notice is given.
These periods are considered valid. These notification periods cannot be eliminated or reduced by the parties, but they can be extended through a contract between the parties. Even if the employment contract is terminated as foreseen, the employee must continue working within the specified notice period. Of course, this continuation is not mandatory, and for example, if the employer does not want to continue working with the employee, the employer can immediately terminate the contract by paying the employee the notice compensation for the duration specified above. Similarly, if the employee does not want to continue working with the employer, the employee can terminate the contract by paying the employer the notice compensation.
Regarding this issue, the 7th Civil Chamber of the Court of Cassation in its decision 2013/1449 E. and 2013/2406 K. ruled: “…Notice compensation is a compensation that must be paid by the party terminating the indefinite-term employment contract without a valid reason and without providing a proper notice period. Accordingly, the notice compensation must be paid if the employment contract is terminated without any reasons specified in Articles 24 and 25 of the Law and without providing the proper notice period as defined in Article 17 of the Law.”
In summary:
-In the case of a workplace transfer, the employee cannot claim notice compensation.
-In the case of termination by the employer for a valid reason, the employee cannot claim notice compensation.
-In the case of termination by the employee for a valid reason, the employee cannot claim notice compensation.
-In a fixed-term contract, the employee cannot claim notice compensation.
How to Calculate Notice Compensation
The employee’s seniority corresponds to the notice period. If either the employee or the employer wishes to terminate the employment relationship, they must notify the other party and complete the notice period. Otherwise, they must pay notice compensation to the other party equivalent to the salary for the notice period.
For example, if an employee who has been working at the workplace for 5 years wants to leave, they must notify the employer and continue working during the 8-week notice period. At the end of this period, they can leave. If the employee leaves without waiting for the notice period, they must pay notice compensation equivalent to 8 weeks of salary.
When an employee terminates their employment contract, whether with or without just cause, does the employer’s obligation to pay the unpaid wage claims, annual leave entitlement, and unused paid leave continue?
The issue of whether an employee can claim severance pay and notice compensation depends on whether the termination of the employment contract is with or without just cause. However, the employee’s claims for wage arrears, overtime pay, bonus entitlement, meal allowance, fuel assistance, holiday pay for national and general holidays, and weekly rest day pay are not influenced by whether the termination is with or without just cause. In short, in cases where the employment contract ends due to the employee’s resignation or dismissal, the employee can still claim other labor-related entitlements such as overtime pay, annual leave pay, basic wage arrears, and other similar claims from the employer.
Lawyer GÖKÇE DEVİREN & Lawyer GÖKHAN AKGÜL
You can access our detailed article on labor law and employee claims at the following link: https://gokhanakgul.av.tr/is-hukuku-isci-alacaklari-is-tazminatlari/
Labor lawsuits directly concern individuals’ economic savings, personal rights, as well as their time and effort. Labor law has many nuances in terms of procedure. It is crucial to seek legal support and work with a lawyer in order to avoid becoming a victim. You should not forget that taking action without legal assistance can lead to loss of rights. If you intend to resign, we strongly recommend seeking legal support BEFOREHAND, as getting help from a lawyer is important not only for the lawsuit but also beforehand. Evidence required for a case can be gathered in accordance with labor law principles before filing a lawsuit.
You can always contact our law office located in Antalya/Muratpaşa, which has experience in labor law.
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