Should The Defense Of The Employee Be Taken for The Reporting Period Of Him/Her Due To The Health Reason? 20 May 2019

As is known, in accordance with the provision 25/1-b of Labour Law No. 4857, the employer's right to terminate the contract of employee arises after the reporting period, due to the health reasons, exceeds notice period six weeks. As a result of the termination in this way, the employer's obligation to pay severance payment arose, however, when the issue is examined in terms of job security provisions; it was long debated whether the obtaining defense was necessary or not before the termination and different decisions of the different departments of the Supreme Court of Appeals has caused uncertainty in the application

. As follows;

In accordance with the regulation of Article 19 of Law No. 4857;

“An indefinite-term employment contract of a worker cannot be terminated for reasons related to that worker's behavior or performance without receiving his/her defense relating the claims against him/her. However, the employer’s right of termination in accordance with the conditions of the clause (II) of article 25 is reserved.”

it is foreseen that the defense of the employee should be taken before the termination due to reasons related to the behavior or performance of the employee.

In the decisions of some departments of the Supreme Court of Appeals, it is stated that it is a legal requirement to take a defense in the terminations other than this article only with reference to acceptance that the termination based on Article 25/II of the Labor Law is an exception, in the context of the provision of Article 19 concerning the obligation to take a defense. In other words, it is stated that there is a necessity to take a defense in the termination which is regulated in Article 25/ I-b of the Labor Law, based on the fact that the health report period exceeding 6 weeks the notice period of the worker. In the decisions of the Court of Appeals for the 9th circuit, in particular after 2015, it is emphasized that there is a need for defense and stated as “the employee’s defense must be taken in accordance with Article 19 as it is related to the efficiency of the worker's not fulfilling the performance of work due to health reasons.”

Taking into consideration that the decisions of the Civil department No. 22 of the Supreme Court are in the opposite way, and that in the last paragraph of Article 25, the employee can apply to the judicial remedy based on the provisions of the job security; and except the termination regarding 25 / II, it is seen that there is no obligation to take any defense.

The current discussion and precedent diversity have ended with the Supreme Court Decision of the Joint Chambers dated 19.10.2018.

In the decision, it was decided that “there is no need to take a defense in the immediate termination of the employment contract due to the absence which is because of health reasons of the employee for six weeks more than notice period of the employee.”

On justification of the decision of General Assembly on the Unification of Judgments it was emphasized that;

  • There is no reference to Article 19 which regulates the termination procedure including the need to receive defense and therefore, the termination cannot be deemed invalid due to the failure to receive a defense before the termination on the last paragraph of Article 25 of Law No. 4857, which the reasons for rightful termination on behalf of employer are counted;
  • The purpose of receiving a defense before the termination was to identify the factors that adversely affect the business relationship and to allow the workers who had been informed about this issue to be able to correct or eliminate the negativity of the of his/her performance apart from being a formal factor; however, it was also emphasized that there was no meaning to demand the defense from the employee when the employee was not related to issue or if the employee could not change it;
  • The health reasons causing the termination of the employment contract due to the employee’s absenteeism exceeding the notice period could not be evaluated within the scope of the employee's behavior or efficiency which are involved in the second paragraph of Article 19; and therefore there is no need to receive employee’s statement;
  • The defense to be received from the employee before the termination was not intended to reach any result due to the employee’s absenteeism exceeding his/her notice period, since the reports received are the only documents proving the result of termination, it is not possible to obtain a document or a situation that can be learned by receiving defence.

Indeed, it is known that the uncertainty before the decision of joint chambers is hesitant because it is not possible to obtain the defense from the employees who have health report and who are not in the workplace, since it is not effective to the result in the possibility of obtaining defense, it is known that that it has to be included in the process only as a procedural process.

As a result, it is important to emphasize that according to the decision given by the General Assembly on the Unification of Judgments the employee does not need to be received a defence before the termination of the employment contract by the employer because of the reasons arising from the absence of the employee for six weeks more than his/her notice period due to the health reasons.

You may reach the complete text of the Decision by clicking the link: Yargıtay İçtihadı Birleştirme Hukuk Genel Kurulu 19.10.2018 tarih, 2017/9E., 2018/10K. Sayılı kararı

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