THE CONCEPT OF PENAL CLAUSE IN LABOR CONTRACTS 21 August 2020
- THE CONSEPT OF THE PENAL CLAUSE
Penal clause is a concept regulated in article 179 of the Turkish Code of Obligations. Accordingly, the penal clause; it is a penalty demanded from the debtor if the debts arising from the contract are not fulfilled properly or at all.
The penal clause is generally regulated in order to encourage the parties to fulfill the contractual obligations and to impose sanctions on the other party if these actions are not fulfilled.
- IS THE PENAL CLAUSE PROVISION IN EMPLOYMENT CONTRACTS VALID?
There is no regulation within the scope of the Labor Law regarding the provision of penal clauses in the labor contracts between the employee and the employer. Therefore, while evaluating the validity and conditions of the penal clause, the Turkish Code of Obligations and the decisions of the Supreme Court should be examined.
When the decisions of the Supreme Court are examined, the basic conditions for the provision of penal clauses in labor contracts are as follows;
- Rule of Reciprocity
In line with the decisions of the Supreme Court, the most important condition for the validity of the penal clause in the labor contract is that the said penal clause is mutual and the amounts are proportional to each other.
The condition of reciprocity is sought in terms of both the penal conditions imposed for the termination of fixed-term contracts before their term, and the penal conditions regarding the termination of the contract before a certain date due to the training opportunities provided to the employee.
- Penal Clause Distinction In Fixed Term and Permanent Contracts
As stated above, penal terms in employment contracts are basically based on two reasons. The first of these are the penalty clause appled in case the contract is terminated before its term, and the other is the penalty clause imposed for the refund of education expenses in terminations that occur before a certain date due to some training expenses made for the employee.
In the event that the labor contract is terminated before its term, the other condition for the penal clause to be valid is that the labor contract is a fixed term contract. Because there is no specific termination or expiration date in permanent labor contracts, it is not possible to make a regulation on the termination of the contract before its term.
On the other hand, within the scope of the decision dated 08.03.2019 by the Supreme Court, in cases where a labor contract prepared for a fixed term is accepted as an permanent labor contract from the beginning due to the lack of the conditions listed in the law, the penal clause provision is valid. At this point, although the contract is considered to be permanent from the beginning, it is considered a fixed term labor contract for the penal clause.
It should also be noted that the provision regarding the demand of training expenses as a penal clause, can also be regulated in permanent labor contracts. However, the most important point to be considered here is that the above mentioned reciprocity principle should be provided.
