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Termination Of The Employment Agreement by The Employee: Resignation

 Av. Alper YILMAZ
                                                                                   alperytr@gmail.com
Resignation means the termination of the labour contract by the employee. The cases in which the employee has a valid reason for the termination of his/her labour contract are described in Article 24 of the Turkish Labour Code.
Besides, Article 14 of the Code no. 1475 regulating the cases of the termination which qualifies severance pay for the employee is still in force. In case of a termination for the reasons described in these Articles, the employee is entitled to have severance pay. However, he or she can not demand for notice pay. The employee also does not have a right to bring a reemployment lawsuit in case he or she terminates the labour contract.
In case of the termination of the labour contract by the employee excluding the reasons described in Article 24 of the Turkish Labour Code and Article 14 of the Code no. 1475, the employee can not demand any severance pay. Besides, the employee who wishes to leave the job has to give dismissal notice to the employer for the periods of time determined by the Code. Unless the employee gives the dismissal notice, he or she may have to pay the fee amounting to the dismissal notice to the employer.
After giving brief information about the termination of the employee, we shall deal with the question whether the termination of each employee has the quality of resignation or not.
The base component of resignation, in other words the termination of the employee, is that the employee wishes to terminate his/her labour contract voluntarily. In case the employee is resigned by harming his/her will due to the reasons such as the compulsion, force by the employer, etc., it is obvious that this means the termination by the employer, not the termination by the employee.
Thus, the courts check whether the written petition of the employee which only shows his/her resignation, is in fact a resignation or not. If there is no real termination by the employee, the employee is forced to resign by the employer, and his/her will about this matter is harmed, in such a case there is a termination by the employer and the employee will be able to demand the legal results related to this situation.
We shall continue our article with the decisions of the Supreme Court rendered about this matter. In the first decision of the Supreme Court which we will scrutinize, the plaintiff employee stated that he had signed the resignation petition under the employer’s pressure and  brought a lawsuit including claims for severance pay and notice pay as well as reemployment. The court of first instance ordered nonsuit about the reemployment lawsuit excluding the demands of severance pay and notice pay of the plaintiff.
The Supreme Court which examined the subject[1] delivered a judgement as follows:
“The plaintiff employee has demanded a ruling on his reemployment and invalidity of the termination to be ordered by asserting that he was forced to resign by the employer, and as a result of the pressures, he was forced to sign the resignation petition on 03.07.2006 which would be in force as from the date of 30.06.2006. In relation to the aforesaid claim, it is primarily necessary to clarify that by whom the contract was terminated by inquiring into whether the resignation petition was taken under the pressure or not.
Whether the labour contract came to an end by resignation or not and whether the resignation represented the free will or not are important subjects which shall directly influence the reemployment lawsuit. Without inquiring into these matters, it is erroneous to accept on one hand that the labour contract came to an end by resignation, and to order on the other hand a nonsuit by mentioning the necessity for the claim of force to resign to be put forward during the severance pay and notice pay lawsuits. The evidences about this subject, if any, must be demanded from the parties; a ruling must be given about the reemployment lawsuit after determining whether the resignation petition was taken under the pressure or not.”
 
As one will clearly understand from the aforesaid decision, a clear assessment related to whether the labour contract comes to an end by resignation or not and whether the resignation represents the free will or not is sought. It is required that a ruling about the reemployment lawsuit be given after an assessment is made in this way.
In the second decision of the Supreme Court included in the article, the resignation petition was taken from the plaintiff booking clerk on account of the fact that if he resigns due to the irregularity in usage of ‘kent kart’ (a type of bus card), there would not be any investigations about him, and in response the plaintiff brought a reemployment lawsuit against the employer.
The Supreme Court which gave a ruling about the subject[2] came to a conclusion as follows:
“According to the content of the lawsuit, it is understood that an investigation was conducted in the defendant workplace with respect to the irregularity in usage of ‘kent kart’ about a few employees, including the plaintiff, that the plaintiff and the other employees were invited to give a statement of defence, that they were told if they resigned at this stage no investigation would be conducted, if not, there would be an investigation to be conducted, that petitions were taken from them, that in the conducted examination of the File no. 2008/26105 of our Chamber during the lawsuit brought by the employee, whose labour contract had been terminated with the same precedent reason, the resignation petition was taken under pressure, the termination was performed by the employer and was not based on a justified ground. In the concrete dispute, the fact that the plaintiff gave the petition under the threat of investigation is proven by the expressions of the witnesses for the defendant. It is necessary to accept that the plaintiff did not terminate his labour contract of his own free will but the labour contract was terminated by the employer. Since the labour contract of the plaintiff was terminated in defiance of Article 19 of the Labour Code no. 4857, it is not based on a justified ground. The written dismissal of the case instead of acceptance of the case is erroneous.”
 
As it can be clearly seen in the court decision, a ruling on the acceptance of the reemployment lawsuit has been given concerning that in fact, on this occasion, there was a termination by the employer and that it was not based on a justified ground with a view that the resignation petition, which was taken from the employee on account that no investigation would be conducted if he resigned even though he did not have any kind of resignation will, was not based upon the employee’s free will.
In the last decision of the Supreme Court subject to analysis, the employer had made the employee, who has been working in the workplace for more than 10 years, sign the printed resignation petition dated 26.03.2003, which was pre-prepared, and thereupon a lawsuit was brought by the employee with the request for collection of the severance pay and notice pay on account of the fact that the aforesaid resignation did not reflect the true will.
The Supreme Court which gave a ruling about the aforesaid case[3] came to a conclusion as follows:
“After reviewing the mutual claims and defences of the parties, the reports and evidences in the case file, the reasons declared in the decision of reversal, and especially the legal impossibility to accept that the statement of resignation in the petition reflected the true will of the plaintiff since it was clearly understood from the statement of İrfan Yeşil, the witness for the defendant, that the petition dated 26.3.2003 containing the resignation request of the plaintiff was formed through taking the signature of the plaintiff below a printed text pre-prepared by the plaintiff employer; and while it is necessary to abide by the decision of reversal of the Special Chamber, which was adopted by the Assembly of Civil Chambers as well, insisting on the previous decision is against the procedure and law. Therefore the decision of insistence must be reversed.”
 
Consequently, as it can be clearly understood from the above-mentioned decisions of the Supreme Court, every resignation petition signed by the employee does not mean the termination by the employee. In order for a resignation in accordance with the Code to  be in question, the will of termination of the employee must reflect the truth, and the aforesaid will must not arise under the employer’s pressure. It must be kept in mind that if the employee resigned under the pressure of the employer and proved that fact, then a termination by the employer would come to the fore at this stage and the legal consequences (bringing a reemployment lawsuit, right to demand severance pay and notice pay, etc.) would arise therefrom.


[1] Court of Cassation, 9th Civil Chamber, decision date: 30.04.2007, file no. 2007/3154 E., decision no. 2007/13552 K.
[2] Court of Cassation, 9th Civil Chamber, decision date: 01.06.2009, file no. 2008/34027 E., decision no. 2009/14977 K.
[3] Court of Cassation, Assembly of Civil Chambers, decision date: 23.05.2007, file no. 2007/9-288 E., decision no. 2007/286 K.
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