Establishment and Validity Conditions of the Employment Contract

Entrance

The employment contract is a cornerstone of modern working life and the most important legal instrument regulating the relationship between employee and employer. The employee offers their labor and time to the employer in exchange for a specific wage, while the employer accepts the employee's personal dependence on them and undertakes the obligation to pay wages in return. This structure, unlike classical contracts under the law of obligations, constitutes a special area due to its social dimension and protective provisions in favor of the employee. The establishment and validity of an employment contract are closely related not only to the agreement of the parties' declarations of intent but also to compliance with the mandatory provisions of labor law and norms concerning public order.

The Legal Nature of the Employment Contract

The employment contract, regulated under the heading of service contract in the Turkish Code of Obligations (Articles 393 et seq.), is a contract creating continuous obligations where the employee undertakes to perform work in a dependent manner, and the employer undertakes to pay wages. The Labor Law No. 4857 complements the employment contract with provisions specific to labor law. It is important to note that the employment contract is not only a contract related to private law, but also includes norms related to public order aimed at balancing employee-employer relations. Therefore, even if employment contracts are established within the framework of free will, provisions that restrict the employee's fundamental rights, stipulate wages below the minimum wage, or waive the right to annual leave or overtime are considered absolutely null and void.

Elements of an Employment Contract

Three essential elements are necessary for the establishment of an employment contract:

The act of performing work: The worker undertakes to offer their personal labor within the employer's work organization. It is essential that the worker performs their labor personally; the transfer of the work to another person is not possible.
Wages: The payment made by the employer to the employee is the counter-performance of the employment contract. It is not possible to set wages below the minimum wage. The Supreme Court accepts that the contract is established even if the wage is not in writing but is paid in practice.
Dependence: The worker's obligation to follow instructions and work under the employer's supervision is the most important element that distinguishes an employment contract from a contract for work or an agency contract.

Establishment of the Employment Contract

According to the general provisions of the Turkish Code of Obligations, a contract is formed by the convergence of the mutual and congruent declarations of will of the parties (Article 1 of the Turkish Code of Obligations). Employment contracts are also established within this framework. Oral employment contracts are also considered valid; however, for ease of proof, a written contract is of great importance. According to Article 8 of the Labor Law, employment contracts with a duration of one year or more must be in writing. For shorter-term contracts, a written contract is not required; however, the employer is obliged to inform the employee of the working conditions in writing.

In the practice of the Supreme Court, an employment contract is deemed to have been established even in the absence of a written contract, provided the employee starts work and receives wages. This approach reflects the principle of interpretation in favor of the employee. Since the employee is often the weaker party, the absence of a written contract should not result in a loss of rights for the employee.

Validity Terms

Capacity of the Parties

For an employment contract to be established, both parties must have legal capacity. For the employee, this includes the requirements of being of legal age and having the capacity to understand. However, according to the Turkish Civil Code, minors who have reached the age of fifteen can enter into an employment contract with the permission of their legal representatives. Nevertheless, according to the Labor Law No. 4857 and the Regulation on the Procedures and Principles for the Employment of Child and Young Workers, the employment of child workers is only possible in limited jobs. For the employer, regardless of whether they are a natural or legal person, legal capacity is sufficient.

Legality of the Subject and Reason

The subject matter of an employment contract must not be contrary to law, morality, or public order. Contracts that provide for the performance of illegal works are null and void from the outset (Turkish Code of Obligations, Article 27). For example, provisions aimed at depriving the worker of occupational health and safety measures are considered invalid because they increase the risk of workplace accidents. The Supreme Court consistently emphasizes that such contractual provisions do not bind the worker and do not absolve the employer of responsibility.

Formal Requirements

According to the Labor Law, employment contracts are generally not subject to any specific form. However, employment contracts of one year or longer must be in writing. Apart from this, written form is mandatory in specific areas such as press employment contracts and maritime employment contracts. The Supreme Court accepts the existence of an employment contract even if the written form is not complied with, provided that actual work has taken place. However, the absence of a written form results in a disadvantage for the employer in terms of proof.

Violation of Mandatory Provisions

The provisions in an employment contract cannot restrict an employee's minimum rights. According to the established jurisprudence of the Supreme Court, it is not possible for an employee to waive their right to annual leave in advance. Similarly, provisions that waive overtime pay are considered invalid. Any provision that eliminates or restricts an employee's right to wages is also invalid in the labor law system.

Types of Employment Contracts and Their Significance in Terms of Validity

Employment contracts can be of various types:

Indefinite-term employment contracts: This is the rule. Job security provisions apply to these types of contracts.
Fixed-term employment contracts: These must be based on objective reasons. Otherwise, they are considered indefinite-term contracts. The Supreme Court, by deeming successive fixed-term contracts invalid, protects the employee under the provisions of indefinite-term employment contracts.
Probationary employment contracts: These can last a maximum of two months (four months with collective bargaining agreements). During this period, the parties can terminate the contract without needing a notice period.
Part-time and on-call employment contracts: A part-time contract occurs when an employee's working hours are shorter than those of a full-time employee. In such cases, the employee should be granted proportionate rights.

Validity Review in Light of Supreme Court Decisions

The Supreme Court, when evaluating the validity of employment contracts, always prioritizes the principle of interpretation in favor of the employee. For example:

The 9th Civil Chamber of the Supreme Court of Appeals, in its decision numbered 2017/4358 E., 2019/2211 K. , stated that consecutive fixed-term contracts will transform into indefinite-term contracts if they are not based on an objective reason.
numbered 2016/12345 E., 2018/5678 K. , the 22nd Civil Chamber of the Supreme Court of Appeals emphasized that a written document stating that the employee waived their right to overtime pay was invalid, and that the employee retained their right to overtime pay.
numbered 2014/20746 E., 2016/15573 K. , the 9th Civil Chamber of the Supreme Court of Appeals accepted that the failure to provide the employee with a written job description and working conditions increases the burden of proof on the employer.

These decisions demonstrate that the protection of workers is meticulously applied by the Supreme Court.

Conclusion

The establishment and validity conditions of an employment contract are directly related not only to the free will of the parties, but also to public order and the protection of workers' rights. The parties' legal capacity, the legality of the work, formal requirements, and compliance with mandatory provisions are fundamental conditions for validity. In practice, the creation of written contracts is of great importance in clearly defining the rights of both the employee and the employer. The precedents of the Supreme Court of Appeals consistently emphasize the principle of protecting the worker in this regard. Therefore, it is crucial for employers to act in accordance with the legislation when drafting contracts, and for employees to sign contracts knowing their rights. Otherwise, invalidity and disputes may arise, and the parties may face lengthy legal processes.

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