What are termination of an employment contract and dismissal?
What are termination of an employment contract and dismissal?
Termination of an employment contract means the termination of the working relationship between an employee and an employer by one of the parties. The termination of an employment relationship does not always occur in the same way. Factors such as who initiated the termination, the reason for termination, the employee's seniority, the nature of the workplace, and the type of contract can directly affect the rights of both the employee and the employer.
In Turkey, the termination of employment contracts is evaluated primarily the Labor Law No. 4857, as well as the Turkish Code of Obligations and other relevant legislation.
Legally, dismissal by an employer and an employee's resignation may not have the same consequences. Similarly, there are significant differences between an employee terminating their employment contract for just cause and resigning without giving any reason.
For foreign employees, in addition to the termination process, work permits and the foreigner's employment status in Türkiye must also be taken into consideration.
Therefore, the termination of an employment contract should not be considered simply as "resignation"; it should be examined separately based on the type of termination and the reason for termination.
Under what circumstances does an employment contract terminate?
An employment contract can be terminated for a variety of reasons.
These include:
- The worker's resignation,
- Termination of the employment contract by the employer,
- Termination of the contract by mutual agreement of the parties,
- The expiration of a fixed-term contract,
- The worker's death,
- The death of the employer and the impossibility of continuing the contract due to its nature,
- Termination immediately for just cause
Situations like these may arise.
Each type of termination may have different legal consequences.
For example, an employee's voluntary resignation is not evaluated in the same way as an employer dismissing an employee for a valid reason.
Similarly, if an employee resigns for justifiable reasons due to prolonged non-payment of wages, they may be entitled to certain compensation.
Can an employer dismiss an employee?
Yes. An employer can terminate an employment contract under certain conditions.
However, there is no general rule that an employer can dismiss an employee at any time and without giving any reason.
Particularly for employees covered by job security provisions, termination may need to be based on a valid reason.
When exercising its right to terminate an employment contract, the employer must comply with labor laws, the employment contract, and other applicable regulations.
Accurately determining the reason for termination and correctly applying the termination procedure are of great importance to both the employer and the employee.
What is termination for just cause?
Termination for just cause refers to the immediate termination of an employment contract in specific circumstances where the continuation of the employment relationship has become unbearable or legally unsustainable for either party.
The Labor Law contains provisions regarding termination for just cause, both for employers and employees.
For example, serious misconduct by the employee, a serious breach of the employer's obligation to pay wages, or working conditions at the workplace reaching a level permitted by law in certain circumstances may be considered grounds for justified termination.
However, not every disagreement automatically constitutes a just cause.
Whether the reason for termination truly meets the conditions stipulated by law should be assessed on a case-by-case basis.
What is termination for a valid reason?
Termination for a valid reason is particularly important for employees covered by job security provisions.
An employer may terminate an employment contract for various reasons, including economic, technological, operational, or those related to the employee's competence or conduct.
However, the reason given by the employer must be real, concrete, and legally acceptable.
For example, if an employer claims that an employee's performance is inadequate, it can be important for them to substantiate this claim with concrete data.
A general statement like "their performance was poor" may not be sufficient in every case.
What is the notice period?
In some cases, prior notice must be given to the other party when an employment contract is terminated by either the employer or the employee.
The notice period may vary depending on the employee's length of service with the same employer.
Generally:
- For those who have worked less than 6 months, 2 weeks
- For employees with contracts ranging from 6 months to 1.5 years, 4 weeks
- For employees with 1.5 to 3 years of experience, 6 weeks
- 8 weeks for employees with more than 3 years of experience
A notice period applies.
The parties may agree on a longer notice period in accordance with legal requirements.
However, the notice period may not apply in cases of immediate termination for just cause.
What is severance pay?
In cases of termination without adhering to the notice period, severance pay may be levied if certain conditions are met.
For example, if an employer dismisses an employee immediately without a valid reason and fails to comply with the required notice period, the employer may be liable to pay severance pay.
Similarly, under certain circumstances, an employee may also be liable to their employer for severance pay.
Therefore, how an employment contract is terminated is of great importance.
What is severance pay?
Severance pay is a significant labor entitlement that an employee can claim from their employer if the legal conditions are met.
For severance pay purposes, the length of time an employee has worked for the same employer and the reason for the termination of the employment contract are important factors.
Not every employee who leaves a job automatically receives severance pay.
For example, an employee's voluntary resignation without any justifiable reason can lead to different outcomes than their dismissal by the employer under conditions stipulated by law.
What is the Right to Reinstatement?
If an employee covered by job security provisions has their employment contract terminated without valid reason, the employee may request reinstatement under certain conditions.
During the reinstatement process;
- whether the employee is covered by job security provisions,
- number of employees in the workplace
- seniority,
- reason for termination
- termination procedure
Factors such as these are important.
It is extremely important not to miss the legal deadlines for reinstatement requests.
Dismissal of a Foreign Employee
The dismissal of a foreign employee is primarily evaluated within the framework of Turkish labor law. However, the issue of work permits also arises in the case of foreign employees.
If a foreign worker's right to work in Türkiye depends on a specific work permit, the legal status of the work permit should be evaluated separately upon termination of the employment contract.
For example, if a foreign worker is employed by a specific employer with a work permit and the employer terminates the employment contract, not only the termination of the employment contract but also the status of the relevant work permit and the necessary notifications must be taken into consideration.
Therefore, both labor law and legislation concerning the employment of foreigners should be considered together when dismissing foreign workers.
What happens if a foreign employee resigns?
A foreign employee's resignation is evaluated the same way as a Turkish employee's resignation; however, it may have additional consequences regarding the foreign employee's work permit.
Whether the employee's resignation is based on a justifiable reason is particularly important.
For example, a foreign employee may have the right to terminate their employment contract for just cause if the employer fails to pay wages, seriously violates working conditions, or fails to fulfill its legal obligations.
In this case, the employee's rights, including severance pay, should also be examined.
Severance and Notice Pay for Foreign Employees
Being a foreigner does not, in itself, eliminate a sole employee's rights to severance pay or notice pay.
For foreign employees, the manner in which the employment contract is terminated, the length of employment, and the reason for termination should also be taken into consideration.
For example, if a foreign employee has worked in Türkiye for the same employer for a sufficiently long period to meet the necessary conditions, and the employment contract is terminated in a way that entitles them to severance pay, the foreign employee may be entitled to severance pay.
Similarly, if the notice period is not observed, and the necessary conditions are met, severance pay may also be considered.
Can a foreign employer dismiss an employee?
A foreign employer or a foreign-owned company operating in Türkiye may terminate an employment contract.
However, the termination process must be lawful.
The fact that the employer is foreign does not automatically remove the employee from the protective provisions of Turkish labor law, nor does it eliminate the employer's obligations regarding termination.
The applicable law should be determined by considering whether the employee works in Türkiye, whether the workplace is located in Türkiye, and other aspects of the employment relationship.
Are termination of an employment contract and expiration of a work permit the same thing?
No.
Distinguishing between these two concepts is extremely important, especially for foreign workers.
Termination of an employment contractrefers to the end of the working relationship between an employee and an employer.
The expiration or cancellation of a work permit relates to the foreign national's right to work in Turkey.
Although the two processes are related, they are not the same concept legally.
Therefore, when foreign employees leave or are dismissed, both the consequences of the termination of the employment contract and the necessary procedures regarding work permits must be evaluated.
What happens to an employee's unused annual leave after they are laid off?
When an employee's employment contract ends, any earned but unused annual paid leave is paid to the employee under certain conditions.
This rule is also important for foreign workers.
For example, if a foreign employee who has worked in Türkiye for several years has unused annual leave, the status of this leave needs to be calculated when the employment contract ends.
Therefore, it is very important for employers to keep accurate records of annual leave.
What should an employer pay attention to after a layoff?
When terminating an employment contract, the employer should document as much of the process as possible.
Especially:
- reason for termination
- termination notice
- employee's length of service
- notice period,
- severance pay
- severance pay
- unused annual leave
- wage receivables,
- overtime,
- SGK (Social Security Institution) termination procedures
It should be carefully considered.
In the case of foreign workers, in addition to these, procedures related to work permits should also be checked.
Mistakes Employers Make During Termination
Some mistakes employers make during the termination process can later lead to serious disputes.
Some of these are:
Not clearly stating the reason for termination
Leaving the reason for termination unclear or changing it later can create proof problems for the employer.
Termination immediately without just cause
Not every workplace problem constitutes grounds for justified termination.
Ignoring the notice period
Failure to comply with the notice period without a valid reason may result in the risk of having to pay severance pay.
Incorrectly calculating severance pay
Incorrect calculation of an employee's length of service or wages can lead to compensation disputes.
Ignoring the foreign worker's work permit
Overlooking the necessary procedures regarding work permits after a foreign employee leaves or is dismissed can create additional legal risks for the employer.
Frequently Asked Questions
Can an employer dismiss an employee whenever they want?
No. The employer's right to terminate employment is subject to legal limitations. Whether the employee is covered by job security provisions and whether the reason for termination is legally valid must be evaluated separately.
Can an employee receive severance pay if they resign?
Not every resignation entitles an employee to severance pay. However, entitlement to severance pay may arise if there are justifiable reasons stipulated by law or other special circumstances.
Can a foreign employee receive severance pay when they are dismissed from their job?
Being a foreigner does not, by itself, eliminate the right to severance pay. The length of employment and the manner in which the employment contract was terminated must be considered.
What happens to a foreign worker's work permit when their employment contract ends?
The termination of an employment contract and the legal status of a work permit are not the same concept. Specific rules regarding the type, scope, and termination of a work permit must be evaluated separately.
Can a foreign employer dismiss an employee working in Türkiye?
Yes, but the termination process must comply with applicable Turkish labor law and other relevant legislation.
Can a dismissed employee file a lawsuit for reinstatement?
Employees who are covered by job security provisions and meet the legal requirements can request reinstatement on the grounds of invalid termination.
Can an employer dismiss an employee without giving notice?
If there are no grounds for immediate termination for just cause, failure to comply with the statutory notice period may result in the employer being liable to pay severance pay.
Conclusion
The termination of an employment contract is one of the most important legal processes in working life. Whether the employer dismisses the employee, the employee resigns, or the parties terminate the employment relationship for any other reason, it can have different legal consequences.
Therefore, before termination , the reason for termination, the employee's seniority, job security coverage, notice period, severance pay, unused annual leave, and other labor-related entitlements should be carefully evaluated.
For foreign employees, another dimension is added to the process. The termination of the foreign employee's employment contract and the status of their work permit must be evaluated separately. In addition to the termination process, the employer must also consider the foreign employee's employment status and related notification obligations.
Similarly, when a foreign employee wishes to terminate their employment contract due to reasons such as the employer's failure to pay wages or unlawful changes to working conditions, it must be carefully examined whether this constitutes a simple resignation or a termination for just cause.
Being a foreign national does not automatically eliminate an employee's fundamental rights under Turkish labor law. Severance pay, notice pay, unused annual leave pay, wage claims, and other labor rights must be assessed according to the specific circumstances of the case and relevant legislation.
Similarly, for foreign employers, when employing workers in Türkiye, the termination process must be evaluated in conjunction with applicable Turkish labor law, social security legislation, and legislation concerning the employment of foreigners.
In conclusion, terminating an employment contract is a process that can have serious financial and legal consequences for both the employee and the employer. Properly conducting the termination process, preparing the necessary documents, and not missing legal deadlines are crucial for protecting the rights of both parties.
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