T.R.
Supreme Court
9. LEGAL DEPARTMENT
E. 2007/31272
K. 2008/10447
T. 28.4.2008
• CASE FOR INVALIDITY OF TERMINATION AND REINSTALLMENT (The Contract Became of an Indefinite Term as the Contract was Renewed with the Parties’ Silence on the Expiration Date – Considering the Plaintiff’s Discomfort and Treatment Condition, the Termination Was Not Based on a Valid Reason)
• INDEFINITE TERM EMPLOYMENT CONTRACT(Since the Contract was Renewed with the Silence of the Parties on the Expiration Date, the Contract Became of an Indefinite Term – According to the Workplace Documents, the Work Performed by the Plaintiff was of a Permanent Nature)
• CONDITIONS FOR MAKING A FIXED-TERM EMPLOYMENT CONTRACT (The Contract Must Be Limited to a Duration and There Must Be Objective Reasons for Concluding a Fixed-Term Employment Contract)
• DURATION OF THE EMPLOYMENT RELATIONSHIP (Even if there is an objective reason, if the date on which the employment relationship will end is not certain or determinable at the time the contract is concluded, there will be an employment contract of indefinite duration)
4857/art.11, 18, 21
818/art.388
5580/m.9
SUMMARY: The plaintiff requested that the termination be invalid and that he be reinstated. In order to be able to talk about a fixed-term employment contract, the contract must be limited to a certain period of time and there must be objective reasons to conclude a fixed-term employment contract. Even if there is an objective reason, if the date on which the employment relationship will end is not certain or determinable at the time the contract is concluded, an employment contract of indefinite duration is in question. It is not enough to have a purely temporary employment contract. Because the freedom to conclude a fixed-term employment contract is limited and the ability to conclude such contracts is dependent on the existence of objective conditions.
On the expiration date, with the parties remaining silent, the contract was renewed, and the plaintiff continued to work until the termination date. According to the workplace documents, it is understood that the work performed by the plaintiff is of a permanent nature, and there are no objective conditions that require a fixed-term contract, such as the performance of a certain job or the completion of a project. In this case, it should be accepted that the service contract is for an indefinite period and the plaintiff can benefit from job security provisions. Considering the plaintiff’s illness and treatment condition, it is clear that the termination made by the employer was not based on a valid reason.
CASE: The plaintiff requested that the termination be invalid and that he be reinstated.
The local court rejected the request.
Although the plaintiff’s lawyer appealed within the sentencing period, the case file was examined after the report prepared by Investigating Judge S. Bıçaklı was heard, and the necessary discussions were made and considered:
DECISION: Stating that the employment contract was terminated by the defendant employer without a valid reason, the plaintiff employee requested that the termination be invalid and that he be reinstated.
The court decided to reject the case on the grounds that the contract was for a fixed period.
In accordance with Article 18 of the Labor Law No. 4857, the worker must work with an indefinite-term employment contract in order to benefit from job security provisions.
Article 11 of the Labor Law No. 4857 states that “Even though the employment relationship is not concluded for a specific period of time, the contract is deemed to be of indefinite duration. An employment contract made in writing between the employer and the employee, depending on objective conditions such as the completion of a certain job or the emergence of a certain phenomenon, is a fixed-term employment contract. A fixed-term employment contract cannot be concluded more than once (chained) unless there is a fundamental reason. Otherwise, the employment contract is considered to be of indefinite duration from the beginning. Chain employment contracts based on a fundamental reason, The principles on this subject have been determined with the regulation stating “they retain their feature of being for a certain period of time”.
Contrary to the regulation in the Code of Obligations, the main rule has been put forward by emphasizing that in cases where the employment relationship is not concluded for a limited period of time, the contract will be deemed to be of indefinite duration. The main rule is that employment contracts are for an indefinite period, and the exception is if they are for a definite period. According to the law, a fixed-term employment contract can be made for fixed-term jobs, depending on objective conditions such as the completion of a certain job or the emergence of a certain phenomenon. Malicious practices used to exclude workers from job security should not be protected.
In order to be able to talk about a fixed-term employment contract, the contract must be limited to a certain period of time and there must be objective reasons to conclude a fixed-term employment contract. Even if there is an objective reason, if the date on which the employment relationship will end is not certain or determinable at the time the contract is concluded, an employment contract of indefinite duration is in question. Even if the employment contract is not explicitly limited to a certain period of time by the parties, if it is understood from the purpose of the work that it is for a certain period of time, the contract is implicitly bound to a certain period of time (BK art. 338/1).
The existence of a purely temporary employment contract should not immediately lead to the rejection of the reinstatement case. Because Article 11 limits the freedom to conclude fixed-term employment contracts and the ability to conclude such contracts is conditioned on the existence of objective conditions specified in the said provision. Therefore, when they bind the employment contract to a definite period, the judge must examine whether objective and essential conditions exist. As a result of the fact that employment contracts are of indefinite duration, the party claiming the existence of a definite employment contract is obliged to prove this.
The situations that can be considered as objective reasons for accepting the existence of a certain employment contract are listed in Article 11 of the Labor Law as an example: the continuation of the work for a certain period of time due to its nature, the completion of a certain work or the emergence of a certain phenomenon. These reasons given in the Law are not restrictive; given as an example; In similar cases, the possibility of establishing a specific employment contract is kept open. Because, the provision in question clearly includes the expression “subject to objective conditions such as…”.
There are also regulations in Turkish legal legislation that require or enable the conclusion of certain employment contracts. For example, according to the 1st paragraph of Article 9 of the Private Educational Institutions Law No. 5580, the employment contract to be made between the administrators, teachers, expert instructors and master instructors working in the institutions and the founder or founder’s representative is made for a fixed period of time, in writing, in accordance with the principles specified in the regulation, for a period of at least one calendar year. Thus, employment contracts with private school teachers, principals and other administrators must be for a definite period and not less than one year.
In the 2nd and 3rd paragraphs of Article 11 of the Labor Law, chained fixed-term employment contracts will retain their feature of being fixed-term if they are based on a fundamental reason; Otherwise, it is regulated that it will be considered as an employment contract of indefinite duration. If there is an objective reason for a fixed-term employment contract and this reason continues or a new reason has emerged, fixed-term employment contracts should be considered renewable. In order for chain employment contracts to maintain their fixed-term nature, it is not necessary for the objective reasons sought in each of them to be the same.
Since a fixed-term contract concluded between the parties without a substantial reason within the meaning of paragraphs 1 and 2 of Article 11 of the Labor Law will be deemed to have an indefinite period, when the employer notifies that the contract has ended with the expiration of the period, the employee may file a lawsuit within a one-month limitation period, claiming that the contract has turned into an indefinite period and that the employer terminated the employment contract without complying with the notification requirement or without giving a valid reason. The beginning of the one-month blackout period is the date on which the employer accepts the contract as a fixed-term contract and notifies that the contract has ended with the passage of the period, and since it turns into an indefinite-term contract, the notification is made by the employer without complying with the notice period.
According to the content of the file, the plaintiff started working in the workplace as an expert engineer with a one-year contract dated 1.8.2005. On the expiration date of 1.8.2006, with the parties remaining silent, the contract was renewed, and the plaintiff continued to work until the termination date. According to the workplace documents, it is understood that the work performed by the plaintiff is of a permanent nature, and there are no objective conditions that require a fixed-term contract, such as the performance of a certain job or the completion of a project. In this case, it should be accepted that the service contract is for an indefinite period and the plaintiff can benefit from job security provisions. Considering the plaintiff’s illness and treatment condition, it is clear that the termination made by the employer was not based on a valid reason.
For the stated reasons, in accordance with the 3rd paragraph of Article 20 of the Labor Law No. 4857, it was necessary to reverse the provision and eliminate it and decide as follows.
CONCLUSION: For the reasons stated above;
1- To reverse the decision and eliminate it,
2- Invalidity of the termination made by the employer and reinstatement of the plaintiff,
3- Although the plaintiff applied for a job within the legal period, if the employer does not start him/her within the legal period, the amount of compensation to be paid will be determined as 4 months’ salary, taking into account the reason for termination and seniority,
4- Determining that the plaintiff should be paid a maximum of four months’ salary and other rights until the finalization of the decision, which the plaintiff will be entitled to if he/she applies to the employer for reinstatement within the prescribed period, and deducting from this receivable the notice and severance pay paid, if any, if the plaintiff is reinstated,
5- Since the fee is paid in advance, there is no need to collect it again,
6- Since the plaintiff is represented by counsel, the attorney fee of 500.00 YTL will be collected from the defendant and given to the plaintiff, according to the tariff in effect on the date of the decision.
7- The trial expense of 52.40 YTL incurred by the plaintiff should be taken from the defendant and given to the plaintiff, and it should be left above the trial expenses incurred by the defendant,
8- It was decided unanimously on 28.04.2008 that the appeal fee collected in advance would be refunded to the relevant person upon request.