Termination of the employment contract by the employee is a consequence of the right to leave work at any time, granted to the employee within the scope of the freedom to work and freedom of contract under Article 48 of the Constitution. No employee can be forced to continue working against their own will.
By its legal nature, termination is a unilateral legal act and a formative right that ends the contract with effect for the future. The validity of this declaration of will does not depend on acceptance by the other party.
Depending on its type, the employee can terminate the employment contract in two basic ways:
1. Termination with Notice (Termination with a Notice Period)
As a rule, termination with notice applies to employment contracts of indefinite duration. When terminating the contract, the employee must observe the statutory notice periods determined according to their length of service (Article 17 of the Labour Law (İş K.)).
✦ Improper Termination: If the employee terminates the employment contract without just cause and without observing the statutory notice periods, this is classed as improper termination. In this case, the employee is obliged to pay the employer notice pay equal to the wages for the notice period (İş K. Art. 17/4).
✦ Notice Pay: Since notice pay is compensation owed by the party terminating the employment contract to the other party, the employee (even when terminating for just cause) cannot claim notice pay.
2. Immediate Termination for Just Cause (Termination without Notice)
Whether the employment contract is for a fixed or an indefinite term, where there is a reason justifying termination, the employee may terminate it immediately without prior notice (İş K. Art. 24; Article 435 of the Turkish Code of Obligations (TBK)). Just cause is defined as any circumstance or condition in which, under the rules of good faith, the party terminating the contract cannot be expected to continue the employment relationship (TBK Art. 435/2).
The just causes giving the employee the right to terminate immediately (İş K. Art. 24) are grouped under three main headings:
1. Health Reasons: If performing the work becomes dangerous to the employee's health or way of life, or if the employer or another employee contracts a contagious disease or a disease incompatible with the employee's work.
2. Conduct Contrary to Morality and Good Faith and Similar Cases (İş K. Art. 24/II): These cases are not exhaustive and, because they cover the employer's conduct in breach of the duty of honesty and loyalty, they are frequently encountered in practice.
3. Compelling Reasons (Force Majeure): The occurrence of compelling reasons that require work to stop for more than one week at the workplace where the employee works.
↪ Being Bound by the Stated Reason in Termination for Just Cause and the Court of Cassation's Approach
If the employee stated a reason for termination when terminating the employment contract without notice, they are bound by the stated reasons in the lawsuit they file.
↪ Examples from Court of Cassation Decisions (Termination for Just Cause by the Employee):
In practice, the situations most commonly encountered when an employee exercises the right to terminate for just cause are the employer's conduct contrary to the rules of morality and good faith (İş K. Art. 24/II):
✦ Non-Payment or Underpayment of Wages: Reasons such as the employee's wages not being paid at all or being underpaid, overtime pay not being paid, or social security (SGK) premiums not being paid on the actual wage give the employee the right to terminate for just cause under İş K. Art. 24/II.
✦ Legal Value of Absence Reports: The employer must prove beyond doubt that the contract was terminated because the employee abandoned the workplace. It is considered contrary to the ordinary course of life for an employee who has worked for many years to leave work without just cause, giving up the rights attached to termination.
↪ Example: Where the Court of Cassation found that the employee left work because of unpaid overtime, weekly rest day, public holiday and annual leave entitlements, it ruled that the employee's termination was based on just cause.
✦ Employer's Words Amounting to Dismissal: Where the employee stopped coming to work after the employer or the employer's representative said things like "if you don't like it, don't work, there's the door" or "whoever accepts this works here, whoever doesn't, doesn't", it was held that the absence reports kept by the employer have no legal value and that the situation is to be regarded as termination by the employer.
✦ Incomplete Statement of the Reason for Termination: The employee's failure to state the reason for termination clearly in the resignation letter does not eliminate the just causes for termination. These matters can also be explained in the statement of claim.
↪ Example: Although the employee did not state a reason in the written resignation letter, the Court of Cassation accepted that just causes such as unpaid overtime pay and insurance being declared on the minimum wage could be set out in the statement of claim, and concluded that the employment contract had been terminated for just cause.
3. Special Cases of Termination That Entitle the Employee to Severance Pay
As a rule, an employee who terminates the employment contract of their own free will without just cause is not entitled to severance pay. However, under Article 14 of the repealed Labour Law No. 1475, which remains in force, the employee may claim severance pay in certain special cases:
Termination for Old-Age Pension / Retirement
↪ Conditions and Legal Consequences: The employee may terminate the employment contract in order to receive an old-age, retirement or disability pension or a lump-sum payment from the social security institution to which they belong. Even if the employee has not reached retirement age, this termination entitles them to severance pay if the insurance period (for example 15 years) and the number of premium payment days (for example 3600 days) have been completed.
↪ Court of Cassation Practice: It is accepted that an employee who meets the premium and insurance period requirements for retirement is entitled to severance pay upon terminating the employment contract, even if the age requirement has not yet been met. Nor is this right lost if the employee starts work in another job after termination.
Termination for Compulsory Military Service
↪ Conditions and Legal Consequences: If the employee terminates the employment contract in order to perform compulsory military service, they may be entitled to severance pay. However, paid military service (bedelli askerlik) or short-term manoeuvres are not, as a rule, covered.
↪ Court of Cassation Practice: There must be a reasonable period between the employee's termination for military service and the date of actual enlistment. The Court of Cassation found reasonable the termination of an employee who joined the army about two months after terminating, and recognised their right to severance pay.
Termination by a Female Employee upon Marriage
↪ Conditions and Legal Consequences: If a female employee voluntarily ends the employment contract within one year from the date of marriage, she is entitled to severance pay. This one-year period is a strict time limit (hak düşürücü süre).
↪ Court of Cassation Practice: A female employee terminating on grounds of marriage is not obliged to observe the notice period. A female employee who marries after leaving her job cannot benefit from this right.
Termination to Serve as a Trade Union Executive
↪ Conditions and Legal Consequences: When the employee leaves the workplace to serve as an executive in a workers' organisation, the employment contract is, as a rule, suspended. However, the employee may, if they wish, terminate the contract and claim severance pay.
↪ Court of Cassation Practice: In the case of termination on grounds of trade union office, severance pay is calculated on the basis of the last gross wage including all benefits at the date of termination, taking into account the employee's entire length of service.
