My Employment Contract Is Being Terminated, What Should I Do?
Av. Alper YILMAZ
Attorney At Law
In Turkey the termination of the labor contract by the employer (dismissal) could be extremely troublous for the employee in some cases and during the dismissal period, practices up to deprivation of rights are seen.
Within this scope, especially during the termination (dismissal) process it is quite vital for the employee to know about his/her legal rights very well in order not to face any deprivation of rights. It would be advantageous to be cautious during the termination process with respect to removal of any possible problems thereafter.
In this article we shall comprehensively try to examine the points to be particular about the period which especially starts with the process of warning notice given by the employer and ends with the termination, shortly the answer of the question “my employment contract is being terminated, what should I do?”in Turkey.
I- NOTICE OR WARNING GIVEN BY THE EMPLOYER
As part of his/her management right, the employer, may give warning or notice to the employee in order for him/her to correct or not to repeat the acts and behaviours of which s/he sees as inappropriate. If the employee is of the opinion that the incident which causes the warning doesn’t reflect the facts, s/he should give his/her written statement of defence and/or declaration to the employer. Following the given warning, the employee should submit the aforesaid written statement in a reasonable period of time. Unless the employee submits any defense statement and/or declaration in such a case, the warning given during the possible judicial process in the future will be able to constitute evidence against himself/herself.
II – TAKING THE STATEMENT OF DEFENCE BEFORE THE TERMINATION
In workplaces, which are included in the scope of job guarantee (for exemple if there are more than 30 employees in the workplace and other conditions stated in the law), if the labor contract is to be terminated because of the employee’s inadequacy or behaviour, it is primarily necessary to take written statement of defence of the employee about the claims against him/her. The termination which is done due to the inadequacy or behaviour without taking the written statement of defence of the employee; shall be declared void, excluding reasons for justified, immediate termination. Within this framework, the employee should primarily ask the employer the defence demand notice and to notify all the claims against himself/herself explicitly. Afterwards, the employee should prepare the detailed written statement of defence about the claims notified to him/her through the defence demand notice and notify the aforesaid statement to the employer. The employer should give the employee a reasonable period of time in order for the employee to prepare his/her written statement of defence. There is no specified period of time about preparation of the statement of defence in the Code; however we are of the opinion that a minimum of 24-hour period would be reasonable, not including the matters such as the qualification, complexity of the claims and accusations, etc.
III- NOTIFICATION OF THE TERMINATION NOTICE
In workplaces, which are included in the scope of job guarantee, the termination notice must be written and the reason for termination must be clearly described. The reason of dismissal (termination) must be based on inadequacy; or behaviours of the employee or reasons concerning the enterprise. First of all, the employee must carefully read the termination notice (dismissal documents) of which the employer wishes to notify him/her, and check whether the date shown as the date of notification is correct. It should never be forgotten that the term to bring reemployment lawsuit will end after a month as from the date of notification of the termination notice. Therefore, a former date shouldn’t be written as the date of notification and the employee should definitely request the records, which shows the former date as the date of notification in the termination notice, to be corrected. The employee is able to include reservations and declarations, for example that all his/her rights are reserved, etc, in the aforesaid termination notice (dismissal documents).
The employee also has the right to abstain from receiving the termination documents which are intented to be notified to him/her. However, in such a case, the term of litigation may start with a minute taken by the employer with respect to the abstention from receiving the termination notice. In order to eliminate this sort of risk, receiving the termination notice by means of checking the date and provided that all the legal rights are reserved would be sound.
The employee should not take account of the oral termination notices and quit his/her workplace relying on these statements. The employee should absolutely ask for a termination letter in respect of the termination of his/her labor contract. If such a written document is can not be given, then the employee, should declare that his/her contract has been terminated orally by the employer and demand that his/her legal pecuniary rights be paid by giving notice to the employer immediately.
Finally, the employee should thoroughly read all the expressions mentioned in the documents drawn up during the dismissal process and all the expressions meaning employee’s termination (resignation) instead of employer’s termination should be ensured to be taken out of the text. At this stage, we would also like to emphasize that during the judicial process, it is checked whether the expressions in the resignation petition are employee’s true will and whether the employee resigned under duress of the employer.
IV- SIGNING OF THE ACQUITTANCE AND THE COMPENSATION TABLE
In case of being asked by the employer to sign the acquittance and the compensation table, the employee, should read the contents of the said documents thoroughly. If there is any misinformation or the calculations of compensation are conducted below the real value, the employee should demand these to be corrected. The employer’s statements including that no compensation will be awarded or no payment will be made without signing the acquittance and the compensation table should never be taken into account. After all, the validity of the right granted under the Code is not conditional upon signing of the acquittance. In case the employee has to sign the aforesaid documents, including a reservation such as “all of my rights are reserved” in the acquittance or the compensation table would be very suitable.
V- REQUISITION OF THE CLEARANCE CARD
According to Article 28 of the Labour Code, “The employer must furnish the employee quitting an employment with a certificate stating the kind and duration of employment. The employee or the new employer who recruiting him who suffers a loss may claim compensation from the previous employer for the latter’s failure to furnish the certificate in due time or for the incorrect information contained in the certificate.”
Within the framework of this provision, the employee should demand the clearance card prepared within the scope of the Code when leaving the job. However, he or she must absolutely crosscheck the information written on the clearance card.
VI- APPLICATION FOR UNEMPLOYMENT INSURANCE
Pursuant to the Unemployment Insurance Code no. 4447, those, who lose their job with the exception of their own desire or fault even though having the desire to work, ability, health and adequacy while working in a workplace within the scope of unemployment insurance, are availed of the unemployment insurance services on condition that they worked as a full-time employee and paid premium during the last 120 days before the termination of the labour contract and provided that they state they are ready to have a job by applying personally to the nearest office of the Turkish Employment Agency or online at www.iskur.gov.tr within 30 days after the termination of the labour contract.
In case of not applying within the 30 days, except the force majeure, the period of time delayed to apply is substracted from the total time of ownership of rights.
For the termination of the labor contract, sometimes it is seen that the will of the employee is abused, the documents which does not reflect the facts are signed, acts and procedures which will lead to loss of rights are implemented. Therefore the employee should be quite careful during the job leaving process. He or she should not sign the documents which he or she is not sure of their accuracy or should receive them by including a reservation such as “all of my rights are reserved”. It is obvious that the acts of the employer by abusing the will of employee are not legally protected. However, while the will is abused, it is seen that the burden of proof belongs to the employee and sometimes the burden of proof about this matter cannot be ensured due to the lack of evidence and witness. Therefore, the employee must be very careful and avoid making any statements which will be used as a base of termination and which will cause loss of a right in all procedures.
Court of Cassation, 9th Civil Chamber, decision date: 21.04.2008, file no. 2007/30777 E., decision no. 2008/9219 K.
Court of Cassation, 9th Civil Chamber, decision date: 21.03.2005, file no. 2005/7361 E., decision no. 2005/9084 K.
Court of Cassation, 9th Civil Chamber, decision date: 14.10.2010, file no. 2008/40996 E., decision no. 2010/30125 K.
Court of Cassation, 9th Civil Chamber, decision date: 30.04.2007, file no. 2007/3154 E., decision no. 2007/13552 K.0 - Bu yazıyı ilk beğenen sen ol!