EXTENDED SUMMARY

Terminating the employment contract is vital, especially for the employee. Except for the termination by mutual agreement of the parties and the termination of the fixed-term employment contract; the employment contract basically and commonly is terminated upon notice. In our law, there are two types of termination upon notice. The first one is specific only to indefinite-term employment contracts, and the employee or employer terminates the contract, provided that the notice periods stipulated in the law are complied with. The second one is the termination of a fixed or indefinite-term employment contract with a just cause, without the need for a notice period. Article 24 of the Turkish Labour Law regulates the termination of the contract by the employee, and Article 25 regulates the termination of the employer with just cause.

In particular, the termination of an indefinite-term employment contract is based on the principles of freedom and reciprocity that dominate the contract law. These principles, which reflect an individualist and liberal understanding of law have been largely abandoned because they do not comply with the aim of protecting the employee in the contemporary labour law, and the termination of the employer’s indefinite-term employment contract in order to provide job security for the employer has been made dependent on the existence of a valid ground.

On the other hand, the employee’s termination of an indefinite-term employment contract has been accepted as a reflection of free will. Undoubtedly, it can be accepted as a normal way for the employee to terminate the employment contract voluntarily and take the aforementioned socio-economic risks for personal or family reasons. However, it is not always possible to accept it as a normal way for the employee, who is in a relationship of subordination and whose only livelihood is wage income, to terminate the employment contract voluntarily, knowing that they will be deprived of these rights. On the contrary, there may be very exceptional cases where the employee’s will to terminate is based on free will. The employee generally has to terminate the contract not of their own free will, but with the effect of the employer’s unlawful or contractual behaviour. If the termination is based on free will, it means a choice, and if it is the result of reasons originating from the employer, it means a necessity. In fact, the employee is obliged to terminate the contract by only determining these reasons originating from the employer, and in a sense, the employer forces the employee to terminate. For this reason, the legal consequences of a termination by the employer are attached to this termination of the employee. In a sense, this phenomenon should be evaluated as a sanction of the employer’s unlawful acts. In French Law, by the Court of Cassation, a distinction is made between the grounds originating from the employer (l’imputabilité à l’employeur) and the declaration of the employee’s will to terminate (la prise d’acte par le salarié), its legal nature and its consequences have been made clear. It can be said that a similar solution has been adopted in terms of our law, especially by the decisions of the Supreme Court. Indeed, our Court of Cassation characterizes the termination of the employment contract by the employee as an “employer termination” due to reasons originating from the employer and applies the legal consequences regarding the termination of the employer.

The main difficulty in the subject that we focus on, is to determine the legal nature of the concrete cases attributed by the employee. In this regard, the basic principle is that the concrete cases on which the employee is based must be of such weight as to cause invalid or unjust termination. At this point, the nature of the concrete events will be important, not the termination decision of the employee. The legal nature of concrete events will be defined by the judge. It should be noted that the distinction between the actual resignation of the employee and the termination with reference to the employer depends on the purpose of the termination. At this point, the only issue that is important and should be taken into account is whether there was any employer’s misconduct before the termination of the employee. If the employee can prove that the employer terminated the contract or resigned due to their misconduct, the termination in question must be attributed to the employer.