Procedures & Principles Of Performance – Based Termination

  Av. Alper YILMAZ
Labor contract is a kind of contract which is established on the basis of a trust relationship between the employer and the employee and burdens both parties with obligations regarding Turkish Law.
Just like in every field, technological advancements produce new labour forms; the methodologys & procedures of performance, which were introduced for the same job 10 years ago, is not seen sufficient anymore.
Thus in the provision of Article 18 of the Turkish Labour Code no. 4857, “reasons arising from the adequacy of the employee” have been regulated among the situations in which the employment relation could be terminated, however the limit and framework of the concept of  “adequacy” have not been drawn up by the Code.
Even though examples about the “inadequacy” situations are given in the justification of the Code, it is necessary to evaluate the reason for termination according to the characteristics of each case. The situations in which the concept of “adequacy” would affect the termination of the employment relation have been tried to be attributed to the objective criteria by the practice and the decision of the Court of Cassation. The decision of the Court of Cassation which is given below within this framework determines the principles of the “termination by the reason of performance” from the point of law enforcement officers loud and clear.
In the decision dated 18.03.2008 with the decision no. 2008/5327 & file no. 2007/27584 by the Court of Cassation, 9th Civil Chamber, the issues stated above have the guiding quality in the expressed points. Thus the general principle in the terminations related to “the inadequacy of the employee” is set forth in the decision as follows:
“…It is obligatory to determine the objective criteria in order for the results of performance and productivity of the employer to be the basis of a justified ground. The standards of performance and productivity must be intrinsic to the workplace. The standard of objectivity must be implemented so that those who do the same job in the workplace are bound by the same rules. The standards of performance and productivity must be realistic and reasonable. For the existence of a justified ground based upon the results of performance and productivity, there must be results with downward trend or which are continuously low. The results which are not continuous and change according to the conditions may not be accepted as adequate for a justified ground. In addition, failure to achieve the goals about enhancing the performance and productivity should not, on its own, be a justified ground; if the capacity of the employee is enough for the high objectives but the employee does not show the effort required for these objectives, then a justified ground can be in question. On the other hand, in order to be objective during the performance evaluation and accept the justified ground, the criteria of the performance evaluation must be predetermined and notified to the employee and these criteria must be taken as a basis for the competencies such as knowledge, skill and experience required by job, behaviours appropriate to the workplace and the objectives of personal and job development which the employee is expected to achieve. In other words, the qualification and behaviours of the employee and the objectives which he or she achieves in the end is important. These criteria must be put forth objectively and perceptibly in accordance with the job definition and productivity of the employee, the corporate principles of the employer and the workplace rules required to be complied with, and performance evaluation forms must be prepared accordingly, a Performance Evaluation System, in which the performance of employees in a specific workplace would be evaluated, must be developed and implemented. If, based upon the professional features of the employee which are determined during the trial period and a certain waiting period (of which should be six months at least), the labor contract of the employee is terminated due to decrease in performance and productivity, this can not be accepted as a justified ground. That is to say, the working standards and professional features of the employee within this period are regarded as limits the employer accepts with respect to the subsequent performance and productivity evaluation. Only, in case of going down below these limits continuously, the justified ground may emerge. If the employer asserts that he or she is right to expect the performance and productivity above these limits, he or she must also prove that the performance enhancing facilities such as improving the conditions of training and working, which would confirm this expectation of the employer, are provided.”
Since the decision above, determines very important criteria about the termination of the labour contract due to “inadequacy”, it would be highly useful to deem this decision as a precedent and take actions in practice in light of the principles stated in the decision. The criteria, which are determined in the relevant decision of the Court of Cassation, in order for the terminations caused by “inadequacy” to hold the qualification of termination with unjustified ground, can be summarized as follows;
1) Predetermination of the performance evaluation criteria and notification thereof to the employee, taking these criteria as a basis for the competencies such as knowledge, skill, experience required by job, behaviours appropriate to the workplace and the objectives of personal and job development which the employee is expected to achieve,
2) Having objective criteria for the expectation caused by performance and productivity,
3) The situation of the employee in which he or she will not be able to partly or wholly fulfill the obligations arising from the labour contract at the time of termination due to his or her personal abilities and characteristics and consequently, the subversion of the order of workplace,
4) Elapse of a reasonable period of time which shows the “inadequacy” of the employee and reveals that it is continuous,
5) Definetely taking the statement of the defence of the employee before the termination, if the labour contract will be terminated due to “inadequacy”.
The core mandate of all the principles given above is towards putting forward the “inadequacy” of the employee objectively and considering the termination as measure of the last resort. If any improvement in productivity of the employee is not seen even though the employer takes steps for enhancing the productivity of the employee as best as he or she can, and if this situation is continuous and therefore the order of the workplace is subverted, it is extremely obvious that the act of termination can be performed at this stage. However, the terminations which would be performed because of “Inadequacy” or “Decrease in Performance” must absolutely have objective grounds; there must be no place for any arbitrary and subjective attitude.
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