Termination of Employment Contract with Notice

In the Turkish labor law system, indefinite-term employment contracts can, as a rule, be terminated at any time by the will of the parties. However, the legislator has subjected this termination process to specific time limits and formal requirements to prevent harm to either party. "Termination with Notice,", is one of the most fundamental yet most prone to errors in working life.

1. The Concept and Legal Nature of Termination with Notice

Termination with notice (termination with notice) is when one party in an indefinite-term employment contract informs the other party that they will terminate the contract after a specified period. In this method, the contract terminates not at the moment of notification, but when the statutory or contractual "notice period" expires

2. Statutory Notice Periods and Calculation Method

Notice periods are determined according to the employee's seniority and these periods are considered "minimum" periods. This means that these periods can be increased by contract, but can never be reduced below the legal limit.

• Seniority between 0-6 months: 2 weeks (14 days)

• Seniority between 6 months and 1.5 years: 4 weeks (28 days)

• Seniority between 1.5 and 3 years: 6 weeks (42 days)

• Over 3 Years of Seniority: 8 Weeks (56 Days)

Important Information: The notice period is calculated in "weeks". For example, for an employee with an 8-week notice period, the period begins the day following the notification date and the contract is considered terminated at the end of the 56th day of work.

3. Four Essential Requirements for a Valid Termination Notice

For a termination to be legally considered a "termination with notice" and not be subject to a future claim for compensation or reinstatement, it must meet the following conditions:

A. Written Form Requirement

According to Article 19 of the Labor Law, employers written . Terminations made verbally, even if given notice, are procedurally invalid.

B. Clarity of the Reason for Termination

The employer must state the reason for termination "clearly and precisely" in the termination notice. Reasons such as "poor performance," "workplace downsizing," or "inefficiency" must be supported by concrete evidence.

C. Taking Action (Especially Regarding Performance)

If the termination is related to the employee's behavior or performance, the contract cannot be terminated without hearing the employee's defense. Terminations made without hearing the employee's defense are considered a direct reason for "invalid termination" in reinstatement lawsuits.

D. Fesh as a Last Resort (Ultima Ratio)

The Supreme Court questions whether the employer could have reassigned the employee to another department before dismissing them. If the employee was dismissed when it was possible to employ them in another position, the termination is deemed invalid.

4. Severance Pay: In Which Cases and Who Pays?

The party that fails to comply with the notice periods is obligated to pay the other party the cost of the extended notice period.

• From the employer's perspective: If the employer wants to dismiss the employee immediately without waiting for the notice period, they must pay the severance pay in advance.

• From the Employee's Perspective: If the employee does not want to wait for the notice period (for example, if they want to find a new job and start immediately), they may be obligated to pay severance pay to the employer.

5. New Job Search Permission and its Abuse

The most important right of an employee in the termination process with notice the right to time off to search for a new job.

• for at least 2 hours .

• No deductions can be made from the salary.

• The employee can combine these leaves and add them collectively to the end of the notice period if they wish.

• If the employer does not grant this leave, 100% extra .

6. Common Mistakes and Legal Advice

• Partial Notice Period Cannot Be Used: The notice period cannot be divided. You cannot have the employee work part of the notice period and pay compensation for the rest. They must either work full time or receive full compensation.

• Severance Pay in Case of Resignation: An employee who resigns with notice (observing the notice period) does not pay notice pay, but (unless there are special circumstances such as retirement) is also not entitled to severance pay.

• Weekends and Public Holidays: The notice period is calculated in calendar days; weekends and public holidays in between are included in the period but do not extend it.

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7. Case Analysis: “Valid Reason” in Light of the Supreme Court Decision

Case: An employee working as a sales representative for a company had their employment contract terminated with notice due to falling short of sales targets. The employer complied with the notice periods and paid the severance pay. However, the employee filed a lawsuit claiming the termination was invalid.

Court of Cassation's Assessment: In such cases, the Court of Cassation looks for the following criteria:

1. Performance Criteria: Are the goals realistic? What is the success rate of other employees?

2. Training and Warning: Has the employee been given training to improve their performance? Has a written warning been issued and their defense heard?

3. Termination as a Last Resort (Ultima Ratio): Was it possible to re-employ the worker in another department?

Conclusion: If an employer terminates an employee's contract without hearing their defense and without providing concrete evidence (graphs, records) of poor performance, the termination invalid, .

💡 A Guide to Avoiding Mistakes for Employers

Based on the precedent decision above, make sure you follow these steps in the notice period termination process:

• Seek a Defense: If you are terminating an employee due to performance or behavioral reasons, be sure to request a written defense before initiating the notice period.

• Choose the Notary Channel: To avoid notifications being marked "undelivered," serving them through a notary is the safest method.

• Clarify the reason: Vague phrases like "due to necessity" will lead to the termination being overturned in court. Provide concrete reasons such as "the company is downsizing" or "department X is being closed."

 Summary and Conclusion

Termination with notice aims to end the employment relationship with a "smooth transition." However, procedural errors (failure to provide written notice, failure to obtain a defense, incorrect time calculation) can create a significant financial burden for businesses. For both employees and employers, conducting the termination process under the supervision of a professional lawyer is the only way to avoid lawsuits that could last for years.