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Termination of the Employment Contract by the Employer for a Valid Reason Based on Poor Performance

Pursuant to Article 18 of the Labor Law No. 4857 (“Turkish Labour Act”); “The employer, who terminates the indefinite-term employment contract of an employee with at least six months seniority in workplaces employing thirty or more employee, has to rely on a valid reason arising from the competence or behavior of the employee or the requirements of the business, workplace or job.”


Accordingly, employees who work with an indefinite-term employment contract and have at least six months of seniority in workplaces with thirty or more employees are subject to job security provisions. Job security aims to secure the job of the employee. The assurance in question mainly arises in the form that the employment contract of the employee cannot be arbitrarily terminated by the employer. In other words, job security provides the protection of the employee against termination. For this reason, the employer's termination of the contract of an employee covered by job security must be based on a valid reason.[1]


If the employment contract of an employee subject to job security provisions is terminated without a valid or justifiable reason, the termination will be deemed invalid. In such a case, the employer may face the risk of reemployment, even if the dismissed employee was paid the severance and notice pay and all labor receivables.


In Article 25 of the Turkish Labour Act, the cases in which the employer can terminate the employment contract with just cause are listed in a limited number. Accordingly, the just causes for termination of the employment agreement by the employer are (i) health reasons, (ii) states that do not comply with moral and goodwill rules, (iii) forceful reasons and (iv) the absence of the employee in case of detention or arrest. In the absence of one of the situations of termination for this just cause, which is counted as in a limited number in Article 25, the employer who will terminate the indefinite-term employment contract of the employee with at least six months' seniority in workplaces employing thirty or more employees must rely on a valid reason.


Termination of Employment Agreement for Valid Reason by the Employer due to the Incompetence / Poor Performance of the Employee


The valid reason is not defined in the Turkish Labour Act. However, in the preamble of the Turkis Labour Law, some situations that will constitute a valid reason for the employer due to the employee's incompetence are counted as examples. These situations are: working less efficiently than those who do the same job on average, having lower performance than expected from the qualifications shown, gradually decreasing concentration on work; inability to work; inability to learn and self-educate; getting sick often; sickness, inadequacy of adaptation, and being at retirement age in case of termination due to reasons arising from the workplace, which does not render them incapable of working, but constantly affects their ability to do their job properly.


Poor Performance as Termination of Employment Agreement for a Valid Reason


Among the cases of termination of employment agreement for a valid reason by the employer due to the incompetence of the employee, the "poor performance", the details of which are not explained in the Turkish Labour Act and the justification of the Act, and which is an ambiguous phrase, emerges as one of the issues that are of great importance in the termination of employment contracts and shaped in accordance with the Supreme Court Decisions.


In accordance with the established jurisprudence of the Supreme Court, for the performance and productivity results of the employee to constitute a valid reason for the termination of employment agreement:


  • Objective performance evaluation criteria must be determined.

  • Performance evaluation criteria should be objectively measurable, realistic, reasonable, appropriate to the capacity of the employee and within the same rule as those doing the same job.

  • These criteria should be put forward concretely in accordance with the job description of the employee, his efficiency, the employer's corporate principles, and the workplace rules to be followed.

  • These criteria must have been communicated to the employee by the employer beforehand.

  • Performance evaluation system and forms should be prepared in accordance with the determined criteria.

  • The evaluation system to be prepared must be prepared specifically for the workplace.

  • At the workplace, performance enhancing opportunities such as training and improving working conditions should be offered by the employer.


In accordance with the settled Supreme Court jurisprudence, the labor standards and professional characteristics of the employee during the probationary period are generally taken into account as the employer's accepted limits for subsequent performance and productivity measurement. However, if these limits are exceeded and this is continuous, a valid reason for termination may arise. If the employer claims that it is justified in expecting a performance and productivity above these limits, it must also prove that it provides performance-enhancing opportunities such as training and improving working conditions to confirm this expectation.


In reemployment lawsuits, the courts will determine whether the employer complies with the principle of termination being a last resort, whether there is an investigation within the company about the existence of other positions where the dismissed employee can be employed in accordance with their qualifications or by subjecting them to in-service training, whether verbal and written warnings are given to the employee, the employee's poor performance and It carefully examines whether its defenses regarding its inefficiency have been received.


Conclusion


Termination of the employment contract by the employer for valid reason should be seen as a last solution. If the employer has another opportunity to enable the employee to continue the employment relationship, the employer should not terminate the contract. Within the framework of our explanations above, the principles and criteria accepted by the Supreme Court should be taken into account in terminations with valid reason to be made by the employer based on the employee's poor performance. However, each case should be interpreted separately, taking into account the decisions of the Supreme Court.


[1] Tankut CENTEL, İş Güvencesi (İstanbul: Legal Yayıncılık, 2012), s. 10.


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