Termination by the Employee with Immediate Effect for Just Cause

Where certain conditions are met, the employee may terminate a fixed-term employment contract with immediate effect for just cause (haklı neden) before the end of the agreed term, or an indefinite-term employment contract without observing the notice period. Article 24 of Labour Law No. 4857 (İş Kanunu) sets out the just causes in three main groups. These are health reasons, cases contrary to morality and good faith and similar cases, and compelling reasons (force majeure). Termination for just cause is particularly important for preserving the entitlement to severance pay (kıdem tazminatı) and frequently arises because of unpaid employee receivables, harassment, failure to apply the working conditions or similar serious breaches. However, if the reason asserted does not meet the statutory requirements or cannot be proven, the termination may not be regarded as justified, and the employee may not only lose severance pay but, in the case of an indefinite-term contract, may also face the risk of having to pay notice compensation (ihbar tazminatı).

Contents

• What is termination by the employee with immediate effect for just cause?
• When do health reasons give a right to terminate with immediate effect (Labour Law Article 24/I)?
• When do breaches of the rules of morality and good faith give a right to terminate (Labour Law Article 24/II)?
• When do compelling reasons give a right to terminate (Labour Law Article 24/III)?
• What time limit applies to exercising the right of termination?
• How should the termination be notified?
• What rights does the employee have after termination for just cause?
• What are the consequences if the employee terminates with immediate effect without just cause?
• What are the alternatives to termination with immediate effect?
• Conclusion

What is termination by the employee with immediate effect for just cause?

Termination by the employee with immediate effect for just cause is the right to end a fixed-term employment contract before the end of its term, or an indefinite-term employment contract without observing the notice periods under Labour Law Article 17. This right may be exercised where one of the reasons set out in Labour Law Article 24 occurs. The provision reflects the principle that the employee cannot be compelled to remain in an employment relationship whose continuation cannot be expected of him or her under the rule of good faith.

When do health reasons give a right to terminate with immediate effect (Labour Law Article 24/I)?

The employee may terminate the employment contract with immediate effect for just cause if performing the work under the contract becomes dangerous to his or her health or life for a reason arising from the nature of the work, or if the employer or another employee with whom the employee is in constant, close and direct contact contracts a contagious disease or a disease incompatible with the employee's work. Establishing the health risk through appropriate medical findings and documents is important for evidential purposes; however, Labour Law Article 24/I does not prescribe a particular physician or form of report. This provision is subject to conditions different from those of the rights under Article 13 of Occupational Health and Safety Law No. 6331 to refrain from work in the event of serious and imminent danger and to terminate if the necessary measures are not taken; in the specific case, the two provisions should be assessed together.

When do breaches of the rules of morality and good faith give a right to terminate (Labour Law Article 24/II)?

In addition to the cases individually listed in the law, Labour Law Article 24/II also covers breaches of the rules of morality and good faith of comparable seriousness. The law lists in particular the following:

• Misleading the employee, when the employment contract is concluded, by presenting false qualifications or conditions or by giving false information or promises regarding essential points of the contract
• Words or conduct affecting the honour and dignity of the employee or of a member of his or her family, or sexual harassment of the employee by the employer
• Assaulting or intimidating the employee or a member of his or her family; inducing, inciting or drawing them into unlawful conduct; committing an offence punishable by imprisonment against the employee or a member of his or her family; or making serious, unfounded allegations or accusations against the employee that are damaging to his or her honour and dignity
• The employee being sexually harassed at the workplace by another employee or by third parties and the necessary measures not being taken despite the employee having reported the situation to the employer
• The wage not being calculated or paid in accordance with the provisions of law or the terms of the contract
• Where wages have been agreed on a piece-rate or job basis, less work being given than provided for and the resulting wage difference not being made up, or the working conditions not being applied

In the practice of the Court of Cassation (Yargıtay), the concept of wages is interpreted broadly. Non-payment or underpayment of overtime pay, weekly rest day pay and pay for national holidays and public holidays, and of bonuses that are to be paid regularly, as well as failure to register the employee for social insurance at all or reporting earnings subject to premiums below the actual wage, may constitute just cause for termination depending on the circumstances of the specific case. Systematic psychological harassment (mobbing), failure to take the necessary measures against sexual harassment and the substantial non-application of working conditions to the employee's detriment may also be assessed under Labour Law Article 24/II and similar grounds. In each case, the seriousness and persistence of the breach and the evidential position should be examined separately.

When do compelling reasons give a right to terminate (Labour Law Article 24/III)?

If a compelling reason arises at the employee's workplace that requires work to be suspended for more than one week, the employee may terminate the contract with immediate effect for just cause. Natural disasters or administrative closures not attributable to the employer's fault may be examples of this; by contrast, economic difficulties or a decline in orders do not on their own constitute a compelling reason. Under Labour Law Article 40, the employee is paid half wages for each day of the waiting period up to one week. Where the suspension of work exceeds one week and the reason persists, the employee may exercise the right of termination.

What time limit applies to exercising the right of termination?

In cases of breach of the rules of morality and good faith, the preclusive periods under Labour Law Article 26 apply. The right of termination must be exercised within six working days from the day following the day on which the act and the person responsible became known, and in any event within one year of the act taking place. The statutory exception under which the one-year period does not apply where the employee has obtained a material benefit from the incident is relevant mainly to terminations by the employer based on the employee's conduct. In the case of continuing breaches, such as non-payment of wages or incomplete reporting to the Social Security Institution (SGK), the possibility of termination as a rule continues for as long as the breach persists; where the breach has ended, the six-working-day period should be assessed separately. The six-working-day and one-year periods under Article 26 do not apply to health and compelling reasons; however, the just cause must still exist at the time of termination. These periods are distinct from the limitation periods applicable to accrued compensation and other employee receivables.

How should the termination be notified?

Labour Law Article 24 does not prescribe any particular form for termination by the employee. However, Article 435 of the Turkish Code of Obligations (Türk Borçlar Kanunu) provides that the just cause for termination is to be notified in writing. For this reason, and to reduce evidential risks, the notice of termination should be given in writing with reasons; the events, dates and, if possible, the relevant amounts should be stated specifically; and receipt of the notice by the employer should be documented by a suitable method, such as a notary, registered electronic mail (KEP) or delivery against signature. If the employee has stated a reason for termination in the notice, he or she is as a rule bound by that reason; it is therefore important that the reasoning be complete and internally consistent. Payslips, bank account statements, SGK service records, correspondence, medical documents and witness statements may constitute evidence depending on the specific case. The employee must as a rule prove the factual basis of the just cause relied upon; the burden of proving that wages have been paid, however, lies with the employer. Staying away from work without explanation is risky, as it may lead the employer to initiate a termination process based on absenteeism.

What rights does the employee have after termination for just cause?

If the employee terminates the employment contract for just cause, he or she may have the following rights:

• Severance pay, if the employee has at least one year of service with the same employer: termination based on Labour Law Article 24 is one of the forms of ending that give entitlement to severance pay under Article 14 of Labour Law No. 1475, which remains in force.
• Due and unpaid employee receivables: wages, overtime pay, weekly rest day pay and pay for national holidays and public holidays, bonuses and pay for unused annual leave, which falls due upon the ending of the employment contract, may be claimed together with applicable interest.
• Unemployment benefit, if the conditions are met: Article 51 of Unemployment Insurance Law No. 4447 lists termination by the employee under Labour Law Article 24 among the forms of ending that may give entitlement to the benefit. However, entitlement is not automatic: the other statutory conditions must also be fulfilled, including having been employed under a contract of service during the last 120 days before termination, having paid unemployment insurance premiums for at least 600 days in the last three years and applying to the Turkish Employment Agency (İŞKUR) within 30 days after termination.
• Material or non-material compensation under Article 437 of the Turkish Code of Obligations and the general provisions, depending on the circumstances of the specific case: for example, a violation of personality rights may, where the conditions are met, additionally give rise to a claim for non-material compensation.

By contrast, an employee who terminates the employment contract with immediate effect for just cause cannot claim notice compensation. Notice compensation is a right of the party whose indefinite-term employment contract is terminated without the notice period being observed; the terminating party does not become entitled to this compensation even if its termination is justified. Before filing a lawsuit for employee receivables and compensation claims, applying to a mediator under Article 3 of Labour Courts Law No. 7036 is as a rule a precondition for bringing an action; statutory exceptions are reserved.

What are the consequences if the employee terminates with immediate effect without just cause?

If it turns out that the just cause asserted did not exist or cannot be proven, the termination is treated as a termination by the employee without just cause. The employee does not become entitled to severance pay. In an indefinite-term employment contract, the employer may claim notice compensation if the notice periods were not observed; in a fixed-term employment contract, by contrast, it is not notice compensation but, depending on the specific circumstances, damage claims based on the contract or the general provisions that may come into consideration. If the employee takes up employment with another employer before the contract term expires or without observing the notice period, the new employer may also share liability where the conditions of Labour Law Article 23 are met. For this reason, the legal basis of the reason to be asserted, the evidential position and the applicable time limits should be carefully assessed before termination.

What are the alternatives to termination with immediate effect?

If the employer wishes to make a material change to working conditions established by the employment contract, sources forming an annex to it or workplace practice, such as to the place of work, the wage or the position, it must notify the employee of the proposed change in writing under Labour Law Article 22. If the employee does not accept the proposal in writing within six working days, the change is not binding on the employee; rejection or silence does not automatically end the employment relationship. The employer may terminate the contract by observing the notice period, stating that the change is based on a valid reason or that another valid reason for termination exists. If the change is nevertheless imposed in practice, this may, depending on the circumstances of the specific case, give the employee a right to terminate for just cause under Labour Law Article 24/II.

In the event of non-payment of wages, the employee additionally has the right to refrain from work under Labour Law Article 34. If the wage has not been paid within twenty days of the due date, other than for reasons of force majeure, the employee may refrain from performing his or her obligation to work. As long as this conduct is based on a personal decision, it does not constitute a strike even if it becomes collective in numerical terms; the employment contract may not be terminated on the ground that work was not performed for this reason, no new employee may be hired in the employee's place and the work may not be assigned to others. Refraining from work and termination with immediate effect for just cause are different legal remedies; which of them is appropriate should be determined according to the circumstances of the specific case and the employee's objective.

Conclusion

Termination for just cause under Labour Law Article 24 is an important legal remedy available to the employee in the face of certain serious breaches. Where just cause exists, the employee may end the employment contract with immediate effect and, if the other conditions are also met, may become entitled to severance pay and unemployment benefit. The legal outcome of the termination depends on the correct characterisation and proof of the just cause and, for terminations under Labour Law Article 24/II, also on compliance with the preclusive periods.

For employers, this provision is an important area of compliance. Late or incomplete payment of wages, incomplete reporting to SGK, failure to take the necessary measures against harassment or mobbing and failure to apply the working conditions may, depending on the circumstances of the specific case, give the employee a right to terminate with immediate effect for just cause and may have consequences with regard to severance pay and other employee receivables.

GEMS Schindhelm provides advice and representation in disputes concerning termination for just cause. This article is for general information purposes only and does not constitute a legal opinion or legal advice; each dispute must be assessed separately according to the circumstances of the specific case and the legislation in force.