05 Nisan 2024
Cancellation of Employment Contract Due to Absenteeism in the Light of Supreme Court Decisions
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The Labour Law (“Law”) stipulates the circumstances in which immediate termination for just cause may be applied for both the employee and the employer. The cases where the employer may terminate the employment contract immediately for just cause are listed in Article 25 of the Labour Law. In this provision titled "Employer's rightful immediate termination for just cause", termination of the employment contract due to absenteeism is also regulated. Article 2 of the Law includes the phrase "For immoral, dishonorable or malicious conduct or other similar behavior" and lists these situations in the following. Subparagraph g of the paragraph reads as follows: "The employee's absence from work for two consecutive working days or twice in a month on the working day after any holiday, or three working days in a month, without permission from the employer or without a justified reason." and thus recognizes the right of immediate termination for just cause in the event of unexcused absenteeism of the employee. Accordingly, the employee must have failed to fulfil this obligation on a day on which employee is obliged to work. Absenteeism should not be based on situations such as taking leave from the employer or being on report. In the decision of the 7th Civil Chamber of the Supreme Court with file no 2013/21856 and decision no 2014/4456;
Absenteeism in the Use of Annual Leave
"Since an employee who is given paid or unpaid leave by the employer cannot be expected to go to the workplace during the leave, there can be no absence in this case. However, since it is within the scope of the employer's management right to determine the time of annual leave, it is not possible for the employee to leave spontaneously. Failure of the employee to come to the workplace by stating that he has used his annual leave constitutes absenteeism unless he is deemed to be on leave by the employer."
As it is known, in some workplaces, Saturday can be considered a working day. In the same way, Sunday may be a working day and the weekend may be used on one of the weekdays. In this case, the employee's absence from work on Saturday or Sunday will be counted as absent. Again, in the decision of the 7th Civil Chamber of the Supreme Court with file no 2013/21856 and decision no 2014/4456;
Absenteeism on Public Holidays and Weekend Working
"The working day should be understood as the day on which the employee must work. If there is a rule in the employment contract that the employee will work on general holidays, then not working on these days also gives the employer the right to terminate the employment contract. If Saturday is a working day in the workplace, absenteeism on the specified day may also constitute a justified reason for termination in the presence of other conditions."
In addition, the decision of the 22nd Civil Chamber of the Supreme Court with file no 2016/7662 and 2019/5897;
"The working day should be understood as the day on which the employee must work. If there is a rule in the collective labour agreement or in the employment contract that the employee will work on general holidays, then not working on these days also gives the employer the right to terminate the employee."
included the following statements.
The absence of the employee can be understood from the issues explained above, and in some cases it may be based on a justified reason. The decision of the 9th Civil Chamber of the Supreme Court with file no 2015/23423 and decision no 2018/20089;
Reasons Justifying Absenteeism
"The employee's absence from work does not give the employer the right to terminate in any case. If the absence is based on a justified reason, the employer does not have the possibility of immediate and justified termination. The illness of the employee, the death or illness of a family member or relatives, the employee's work as a witness and expert witness are the reasons that justify the absence from work. At the point of proving the excuse, reports obtained from private health institutions should also be valued, unless they are claimed to be forged and proven."
it includes the following statements As it is seen, since the employee's absenteeism may be based on justified reasons, it should be evaluated according to each concrete case and whether the conditions for absenteeism are established or not. In the decision of the 22nd Civil Chamber of the Supreme Court with file no 2016/15113 and decision no 2019/12771;
"In the concrete case; that the absence minutes of the plaintiff were submitted to the file by the defendant stating that the plaintiff was absent between 07.05.2014 and 09.05.2014, that the plaintiff did not make a statement that he terminated the employment contract for just cause, on the contrary, he claimed that the employment contract was wrongfully terminated by the defendant, and it was established from the statements of the defendant's witnesses that the plaintiff quit the job and left, when all these issues are evaluated together; While it should have been decided to reject the severance pay request of the plaintiff, whose employment contract was understood to have been terminated by the defendant for just cause due to absenteeism, the decision to accept it in writing necessitated reversal."
In order for the employee to be considered absent, employee must not come to work for one working day. The employee's late arrival to work cannot be considered as absenteeism. Likewise, the fact that the employee comes to the workplace and does not fulfil employee’s duties will not constitute absenteeism. The decision of the 9th Civil Chamber of the Supreme Court with file no 2015/23423 and decision no 2018/20089;
Failure of the Employee Present at the Workplace to Perform the Work Obligation
"Absenteeism is when the employee does not continue his/her work. An employee who goes to the workplace but never starts to fulfil the obligation to perform the work should not be considered absent. The insistence of the employee not to perform the duties that he is obliged to do even though he is reminded is a separate reason for termination, and in this case, an evaluation should be made in accordance with Article 25/II-h of the Law No. 4857."
The absence must have been made for two consecutive working days or twice in a month on the working day after any holiday or three working days in a month. If the concrete case does not comply with these conditions, the employer's rightful termination will not arise. The decision of the 7th 9th Civil Chamber of the Supreme Court with file no 2013/21856 and decision no 2014/4456;
Duration Calculation for Absenteeism
"The expression "one month" in the article does not refer to the calendar month, but to a month that will pass after the first absence. The one-month period ends on the same day of the month following the day of the first absence. If there is no day in the last month on which the first absence occurred, the one-month period expires on the last day of the last month. Subsequent absences are evaluated within the following monthly periods."
Here, it is explained what should be understood from the expression "one month". Accordingly, one month after the first absence will be taken as basis. In the decision of the 9th Civil Chamber of the Supreme Court with file no 2015/23423 and decision no 2018/20089;
"Going backwards from the date of the last absence of the claimant, there was unexcused absence from work on 12 October 2013, 23 October 2013 and 1 November 2013 within the last month. In this case, the conditions of three days of unexcused absence within one month have been fulfilled. The fact that some of these absences belong to October and the last absence belongs to November does not affect the result. The termination made by the defendant employer is in accordance with Article 25/II g of the Labour Law No. 4857 and was used within the legal period. While the notice and severance indemnities subject to the lawsuit should be rejected, the acceptance of the requests as written is erroneous and the decision had to be reversed in this respect."
and the expression "one month" was explained. Accordingly, since one month after the first absence will be taken as basis, it is not important that the absences occurred in different calendar months.
The legal provision is clear as to how the absence is deemed to have occurred. The employee must not have worked on the days claimed to be absent. The decision of the 22nd Civil Chamber of the Supreme Court with file no 2013/14900 and decision no 2014/22406;
Total Hours in Absenteeism Periods
"Unless the period of absence is two consecutive working days or two working days after any holiday twice in a month or three working days in a month, the employer does not have the possibility of justified termination. The employee must not have worked on the specified working days. If a certain number of days is reached by adding the hours of absenteeism, the employer's rightful termination does not arise."
It clarifies this issue with its statements. Accordingly, it would be illegal to reach the number of days required for absenteeism by adding up the shortages in working hours on different days.
As explained above, it is of great importance to document the absenteeism of the employee. For this reason, the employer should prepare a separate absence report for each day of absence. If the employee comes to work after the absence, the employee should be asked to make a defence, and if the employee cannot be reached, the termination procedure should be evaluated at the discretion of the employer.
Another point that should be considered here is that Article 26 of the Labour Law stipulates that "The right to terminate the contract granted to the employee or the employer on the basis of situations that do not comply with the rules of morality and good faith shown in Articles 24 and 25 cannot be used after six working days starting from the day the other party learns that one of the two parties has engaged in such behavior, and in any case after one year from the occurrence of the act. However, in the event that the employee benefits financially from the incident, the one-year period shall not apply." The provision sets forth a final term for termination based on behaviors that do not comply with the rules of morality and good faith. Thus, it is of high importance that these periods are observed by the employer during the use of the right of termination for just cause.
Conclusion
As a result, as set forth by the Labour Law and the decisions of the Supreme Court, in the event that the employee is absent without a justified reason, the employment contract may be terminated by the employer for just cause based on the employee's absenteeism. Although this right of termination for just cause is regulated, it is extremely important to examine the reason for the employee's absenteeism and the terms and conditions within the scope of the Law and the Supreme Court jurisprudence, and these issues directly affect the provisions and consequences of immediate termination for just cause.
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