How is the termination of the amendment of the employment contract in Turkey done ?
As will be seen in the following, Article 22 of the Labour Law No. 4857 sets out the limits and conditions for the employer to make fundamental changes in the conditions of employment. The employee has the right not to accept this change. In case the employee does not accept the change, the employer has two options. The first one is to keep the current situation as it is, and the second one is to terminate the employment contract. The employer’s termination of the employment contract by choosing the second option is called change termination, and the relations of the termination with the institutions related to the termination of the contract in the Labour Law are examined under this title.
As a result of the termination, if the employee meets the other conditions, his/her rights to severance and notice pay arise, and if the other conditions are met, it becomes possible to apply to the labour protection provisions against the termination.
In order for the termination of an employment contract by the employer to be called a change termination, it must first be based on a concrete situation that can be considered in the context of a fundamental change in the conditions of employment. In other words, it must arise from the intention to change the conditions of employment. When these issues are taken into consideration, the conditions of termination of change can be set out as follows.
i) The proposal for change must come from the employer. It is understood from this situation that the request for change must be unilateral from the employer. If the change proposal comes from the employee or if the parties are in agreement about the change, the subject matter cannot be the subject of change termination.
ii) Secondly, a change must be made. Accordingly, in order to be able to speak of a change termination, it is necessary for the employer to request a change in a previously determined and applied labour condition. From this point of view, the negotiations made during the conclusion of the employment contract about the conditions of employment or the changes desired to be made before the contract is signed and put into practice will not be considered within this scope.
iii) Regarding the termination of the employment contract in Turkey the amendment must be requested to be made on the applied contract. Since the theory of participation is valid in our labour law system, even if the contract is signed before the employee starts working, the changes desired to be made on it will not constitute the subject of the amendment termination in Turkey.
iv) The fourth factor to be addressed in the fourth plan is that the amendment in Turkey must have a substantial content as stated in the provision of the law. The provision of the law mentions the fundamental change, but does not give an example about its content. Even though this is the case, certain definitions can be made about the content of the fundamental amendment based in Turkey on the practice and these issues can be listed under four headings in general.
Accordingly, changes in the duties of the employee such as changing the position of the employee or lowering the job title, changes in the working conditions such as increasing the working hours, changes in the wage such as lowering the wage of the employee, changes in the wage such as changing the conditions of entitlement, changes in the workplace where the employee works such as changing the workplace of the employee can be considered within the concept of fundamental change.
v) Finally, the change made within the conditions listed above must not be accepted by the employee. Indeed, if the amendment in Turkey is accepted by the employee, the termination cannot be in question. The employee’s non-acceptance of the change can only be realised explicitly or implicitly. If the employee states that he/she does not accept the change with a petition to the employer, this constitutes an explicit non-acceptance. Apart from this, issues such as not starting work in the new job or workplace and continuing to work in the old job or workplace, receiving the wage as a reservation, filing a complaint or filing a lawsuit in this direction reflect implicit non-acceptance.
At this point, it is necessary to discuss the issue that the employee’s prior acceptance will not be taken at the stage of the establishment of the employment contract or with a later amendment in Turkey, and it is seen that there are frequent problems in practice in this regard.
It can be observed many times that the employee who signs an employment contract containing such a provision, which can be accepted as a type contract provision, usually develops a defence that he did not read the contract, that he did not understand anything even though he read it, and that the unemployment anxiety he was in at the time pushed him to act in this way. Indeed, although it is not possible to prove the defences made by the workers in this direction, it does not seem unreasonable when the general economic conditions and the level of education are evaluated. On the other hand, it is necessary to observe the rights of the party, the employer, who made a contract in good faith and remained loyal to the principles of good faith afterwards. This is also a requirement of the principle of fidelity. Again, it is another obligation to adapt to changing conditions in contract types such as employment contracts that create a continuous debt-credit relationship. However, in accordance with the principle of interpretation for the benefit of the employee, it is seen that such provisions in employment contracts, which do not put the employer under any obligation and contain the acceptance of the employee, do not establish absolute rights, and the validity of such provisions is questioned by the courts by subjecting them to an audit, and this type of audit is called content audit in the literature.
In some cases, content control may become mandatory. If the provision is contrary to the mandatory provisions of the law or personal rights or morality, it may be claimed that the provision has no value. In some cases, considering the characteristics of the type of contract, if it imposes an excessive obligation against one party or if one party acts in violation of the rules of good faith as expressed in Article 2 of the Civil Code, content control may be in question. Accordingly, it is observed that when conducting content control, not only the provisions but also the employer’s intention may be taken into consideration.
From this point of view, it comes to mind which criteria may be taken into consideration during content control. As explained above, it is possible to question whether the provision is contrary to mandatory legal rules, personal rights or morality, and whether the transaction enabled by the provision is based on good faith.
Even though it is established between two parties who have the capacity to exercise rights, the fact that one party (the employer) can force the other party (the employee) to accept a transaction without entering into any obligation with the provision of the employment contract, with such a content control and even by adding the measures of equity to the content control, is in accordance with the principle of interpretation for the benefit of the employee on the one hand, and on the other hand, it is in line with the realities of our country where services are not equally distributed, education and knowledge opportunities are limited, the general level of wages is low and the unemployment level is high. On the other hand, in terms of the workers whose situation is in accordance with the example, it will also provide a legal convenience for the employer to act in bad faith with the intention of punishing the employee or forcing the termination.
In such cases, it becomes possible to disregard the provisions of the contract containing the fundamental change, especially by examining whether the employer has acted in accordance with equity with the content control to be made by the courts, and the provisions of the employment contract containing the fundamental change do not justify the employer in any case. At this point, the employer’s intention and whether the employee has been fairly compensated for the change become important.
Another issue that should be evaluated in the termination of the amendment in Turkey is that although the termination of the employment contract of the employee who does not accept the fundamental change is generally considered invalid, in some cases the termination may be valid. Based on the decisions of the Court of Cassation, in order to reach such a conclusion, it is necessary to carry out a two-stage inspection of the valid reason for termination.
In the first stage, there must be a reason that necessitates a change in the content of the employment contract. The reasons sought for valid termination are also sought in the termination of change. In other words, a valid reason arising from the employee’s behaviour or competence or business necessities must be asserted and proved in the termination of the change.
In the second stage, it is necessary to investigate whether the proposed change is in accordance with the law, the collective labour agreement and the principle of proportionality and whether the employee can be expected to accept this offer as a justified result. As a result, the obligation of the employee to accept the proposed change arises and the failure to accept and the subsequent termination is valid.
In other words, it is the control of the amendment in Turkey proposal that comes to the agenda in the second stage. This control is considered as a type of proportionality control. In this context, termination of the change can only be brought to the agenda if it is necessary as an appropriate and milder remedy for the change of working conditions and proportionate to the objective pursued. In other words, there must be no other organizational, technical or economic measure which would not require a change in working conditions or which would require lesser working conditions to be offered and which would make it possible to achieve the same objective.
Moreover, in such a case, the employer is expected to make a more favorable proposal for the modification of the contract, if possible.
According to these explanations, if it is determined that the change proposal is contrary to the principle of equal treatment in the labour law, the termination of the change will be deemed invalid since the employee has the right not to accept this proposal, and in the opposite case, the termination will be deemed valid since the employee is expected to accept this change proposal since it is more acceptable than the unemployment situation based on the nature of the change.