THE PRINCIPLE OF “ULTIMA RATIO” IN TERMINATION OF EMPLOYMENT CONTRACT 14 December 2020

With the Labor Law numbered 4857, the concept of "valid reason" has been introduced to the Labor Law in addition to the "just cause" concept as a reason for the termination of the employment contract. With the aforementioned provisions, the law restricts the employer's right to terminate "until there is a valid reason" in cases where there are no justified reasons listed in Article 25 of the Labor Law. However, the valid reason is not defined but only stated that the valid reasons can arise from the competence or behavior of the employee or the requirements of the enterprise, workplace or job. Cases that do not constitute a valid reason are also listed. Besides, the concept was explained in the justification of the Labor Law numbered 4773 and 4857 as "Although the valid reasons are not as serious as those specified in Article 25, they are the situations that negatively affect the normal progress of the work and the workplace. For this reason, the reasons that may arise for the valid termination may be the reasons that seriously adversely affect the employee’s obligation to work due to reasons arising from him or his workplace and that do not allow him to fulfill his duty to perform properly. As a result, it will be necessary to accept that the termination is based on valid reasons in cases where maintenance of the business relationship cannot be expected from an important and reasonable measure for the employer." Accordingly, within the scope of the relevant provisions, whether there is a valid reason for the termination of the employment contract in terms of a concrete incident will be determined by judicial decisions and doctrine.

In the Labor Law, the principle of proportionality in Article 13 of the Constitution is of particular importance in evaluating whether a possible behavior of the employee against the contract is within the scope of a justified or valid reason. According to the practice of the principle in Labor Law; employers must apply sanctions commensurate with the actions of their employees, as disproportionate sanctions (terminations) will be unlawful and will result in various demands on employees.

The principle of proportionality includes three sub-principles. These are convenience, proportionality, and necessity. The necessity principle, which is under the proportionality principle, refers to the selection of the least harmful in terms of the person who will deal with the transaction among the various tools available and suitable to achieve a certain goal. The direct reflection of the aforementioned principle of necessity in Labor Law shows itself as an "ultima ratio", that is the principle of "termination as a last resort".  Although the principle of termination as a last resort is not regulated in the law, it is an important principle developed by the Court of Cassation and the doctrine.

The principle of termination as a last resort can be explained as in the most explicit way, that the employee does not have the opportunity to be employed even in worse conditions and therefore the employment contract terminated by the employer as a last resort. Labor Law has established job security provisions with the acceptance that the continuation of the employment contract should be the basis and termination should be the exception. Also, in the justification of the 18th article of the Labor Law, which regulates the termination for valid reasons, the legislator stated that the termination should be an exception and should be carried out as a last resort.

The principle of last resort is a principle that finds application in any termination. For this reason, the limits of being a "last resort" according to different termination grounds, whether termination is necessary and the existence of alternative solutions for the continuation of the contract should be examined.

• Just Cause Termination

The employer has the opportunity to terminate the contract immediately in the presence of justifiable reasons regulated in Article 25 of the Labor Law. Accordingly, in the aforementioned cases, in our opinion, the last resort due to the nature of the work is to terminate the contract,  the employer does not have to resort to another method.

• Termination within the Scope of the Freedom of Business Decision

The limit on the application of the principle of last resort is the freedom of the operational decision of the employer. According to the decision numbered 2017/32847 E., 2017/9825 K. of the 22nd Civil Chamber of Court of Cassation, "In a broad sense, the operational decision is any decision taken by the employer regarding the enterprise, the workplace and the regulation of the work, including the termination of the employment contract. In the case of an operational decision, no review can be made as to whether the decision is useful or fit for purpose. In short, operational decisions cannot be subject to an appropriateness check. The employer's ability to freely take operational decisions and their exclusion from judicial review, as a rule, depends on the fact that these decisions are taken within the limits prescribed by the legal order… While fulfilling the burden of proof, the employer must prove that it complies with the formal conditions of the termination and that the reasons for termination are valid or justified in terms of content. In this context, the employer must prove that he has decided on termination, that this decision creates an employment surplus, which he applies it consistently and that termination is inevitable. "

At this point, the Court examines whether the employer, who has the freedom to make operational decisions, has the opportunity to achieve the goal he aims to achieve by the termination of the employment contract with lighter measures within the framework of the ultima ratio principle. Thus, the compliance of the operational decision with the law in terms of the criteria mentioned above is checked.

• Termination Due to Employee's Occupational Inability

For the termination to be valid due to the reasons arising from both the behaviors and the incompetence of the employee, the behavior and incompetence must cause negativity in the workplace and the continuation of the business relationship must become unbearable for the employer. It is also emphasized in the doctrine that the condition of defect is not mandatory for the valid reason arising from the inadequacy of the worker, and even if the worker is flawless, the "inadequacy of the ability and capacity to fulfill the duty to perform" can be considered a valid reason for termination.

However, by the principle of termination as a last resort, when professional inadequacy is detected, if possible, the employment contract should be kept alive by assigning the worker to other units. In a recent Supreme Court decision regarding this, it was stated that in case the driver working as a driver had frequent accidents, he should be assigned to another unit, if possible, under the principle of termination as a last resort. At this stage, that should be emphasized at this point is that if it is understood that the employee does not have the opportunity to work in the workplace in any other way as a result of the researches, the fact that the employer does not investigate this situation before termination will not invalidate the termination.

Finally, it should be stated that if the employee's performance is affected by reasons not caused by him, the employer should eliminate these reasons that negatively affect performance. Termination of the employment contract without removing these reasons will not constitute a valid reason and will be against the principle of proportionality and termination being a last resort.

• Termination Due to Behavior of the Worker

The principle of proportionality, which prevails in labor law, requires the worker to be warned first, in the event of an act contrary to his obligations. However, if the behavior of the worker has caused significant negativity in the workplace and has affected the continuation of the business relationship, the employer may terminate the employment contract without resorting to a warning.

• Termination Based on the Requirements of the Business and the Workplace

In its decision numbered 2017/32847 E., 2017/9825 K. of the 22nd Civil Chamber of Court of Cassation, "When it is claimed that the termination is made due to the reasons arising from the business, the workplace and the requirements of the work, the business decision of the employer should be sought, the situation that prevents the performance in the act of employment, in other words, the employment should be investigated, whether there is an excess of employment with the business decision, whether the employer applies this decision consistently (consistency audit), whether the employer behaves arbitrarily in the termination (arbitrariness control) and whether termination is inevitable as a result of an operational decision (proportionality control - the principle of termination as a last resort) should be clarified. " and stated the steps to be followed in such terminations.

Finally, it is necessary to first determine which alternative measures the employer can take other than termination and which means cannot be an alternative to termination. It should be possible to implement these measures de facto and legally. It cannot be claimed that the termination is unnecessary and therefore invalid because a measure that is impossible for the employer has been taken.