Immediate Termination of The Employment Contract by the Employer with the Valid Reason Due To Employee’s Immoral, Dishonourable or Malicious Behaviours 31 May 2017
As it is known, the right of immediate termination of the employment contract with the valid reason is a formative right which could be exercised by the party that cannot continue to the employment relationship due to the behaviors of the other party which constitute the reason of the termination. According to the legislation, it is accepted that in such situation where the employment relationship becomes intolerable for one of the parties, the employment contract could be terminated immediately with the valid reason. With this regard, the situations which gives employee to terminate the contract immediately with a valid reason are regulated in Article 24 of the Labor Law numbered 4857 (“Labor Law”), and the situations which gives employer to terminate the contract immediately with a valid reason are regulated in Article 25 of the Labor Law.
The situations which gives employer to terminate the contract immediately with a valid reason are listed under the titles of “health reasons of the employee; immoral, dishonorable or malicious behaviors of the employee; force majeure; and arrest of the employee”; and there are some special provisions regarding the immediate termination of the contract with the valid reason due to immoral, dishonorable or malicious behaviors of the employee.
According to the Article 25/II of the Labor Law, immoral, dishonorable or malicious behaviors of the employee could be the basis for the immediate termination with a valid reason. Such behaviors are counted in the Article; however, the behaviors are not limited with the ones which are counted in the Article, so similar behaviors to the listed ones in the Article could also be the reason for such a termination. With this regard, it is stated that “misleading the employer; any speech or action constituting an offence against the honor of the employer; sexual harassment by the employee; assaults or threats of employee; dishonest actions of the employee against employer; committing a crime at the workplace; absenteeism of the employee; non-performing his duties; imperiling the workplace safety; damaging the employer’s property” and similar actions; are accepted as immoral, dishonorable or malicious behaviors of the employee.
In the Article 26, exercising the right of immediate termination is limited with a time period. With this regard; “The right to terminate the employment contract for the immoral, dishonorable or malicious behavior of the other party may not be exercised after six working days of knowing the facts, and in any event after one year following the commission of the act, has elapsed. The “one year” statutory limitation shall not be applicable, however, if the employee has extracted material gains from the act concerned”. Therefore, the employer should exercise his right of immediate termination in accordance with the time limitation specified in the Article; otherwise, the termination shall have effect and consequences as unjust termination even if there are reasons for just and immediate termination.
Additionally, there is no need to have employee’s defense in order to exercise the right of immediate termination with a valid reason due to immoral, dishonorable or malicious behaviors of the employee, as it is stated in the Article 19 of the Labor Law that “The employment of an employee engaged under a contract with an indefinite term shall not be terminated for reasons related to the worker’s conduct or performance before he is provided an opportunity to defend himself against the allegations made. The employer’s right to terminate the employment contract in accordance with Article 25/II of the Labor Act (for serious misconduct or malicious or immoral behavior of the employee) is, however, reserved.”
Besides, in case the employment contract is terminated by the employer under the Article 25, balanced salary and other payments of the employee should be paid. However, the employee cannot claim notice payment since his employment contract is immediately terminated due to his immoral, dishonorable or malicious behaviors. Additionally, in accordance with the Article 14/1 of the Law numbered 1475, the employee is not entitled to have severance payment as his contract is immediately terminated under the Article 25/II of Labor Law.
With this regard, in case the employer suffer any loss due to immoral, dishonorable or malicious behaviors of the employee; according to Article 26/2 of Labor Law, a compensation could be claimed from the employee under general provisions.
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