How the termination of the employment contract by agreement of the parties in Turkey is going ? In any contract, it is accepted that just as the parties have the freedom to conclude the contract, they also have the freedom to revoke or terminate this contract. Accordingly, the parties who enter into a debt relationship with a contract can always terminate this relationship by concluding a contract again.
In this context, it is possible for the employee and the employer, who are the parties to the employment contract in Turkey, to terminate the employment relationship they have entered into with the employment contract they have concluded, provided that the above-mentioned issues are taken into consideration. This termination process is generally referred to as rescission agreement in labour law and its subject is the termination of the employment contract in Turkey. Immediately at this point, it should be explained that rescission is not regulated in our laws, but as a result of the freedom of contract, it is used to terminate a legal relationship that the parties have previously accepted between them with their free will, again with their free will. In this sense, it should be explained that the rescission of an employment contract in Turkey is a contract. In this sense, it is clear that the rescission of an employment contract is subject to the general principles of the law of obligations in terms of making, determining its scope and nature, since it is a contract.
Rescission, in its literal meaning, means claiming that an unspoken word has been spoken, and in the legal field, it refers to the cancellation of a contract by the agreement of two parties.
With the application of the concept to labour law, it is concluded that the employment contract in Turkey can be terminated by the agreement of the parties, regardless of whether it is for a definite or indefinite term.
In general, it is clear that since the rescission is a contract, it will be subject to the provisions of the Code of Obligations regarding contracts. In this context, it is necessary to evaluate whether it is realised by offer and acceptance, the subject matter of the contract and the provisions regarding will disabilities.
There is no regulation on rescission in the labour law. Therefore, the form, execution, scope and validity of the rescission agreement are evaluated according to the general provisions of the Code of Obligations.
Although the rescission agreement is used in the field of labour law and is generally used to terminate the employment relationship in which the parties are represented by the employee and the employer, in some special cases, it is also seen that the relationship between the two persons continues, but this relationship changes its form with the rescission agreement. In this context, the lawyer who works with an employment contract in Turkey continues to work with an attorneyship contract or the employee becomes an ordinary partner or a company partner and becomes the employer’s representative.
There is no need for a special authorisation to conclude a rescission agreement. In this respect, it is possible to conclude a rescission agreement with the permission of the guardian of an employee who has the power of appeal according to the general provisions, who is of legal age and not incapacitated, or a minor who is not of legal age but can work as an employee according to the provisions of the labour legislation. Additionally, it is also possible for the person specifically and explicitly authorised by the employee to execute a rescission agreement on his/her behalf. Apart from this, although there is no need for the wife to obtain permission from the husband within the marriage union, according to Article 192 of the Civil Code. According to Article 192 of the Civil Code, the peace and benefit of the marriage union should be taken into consideration. If the employer is a legal entity, it is important whether the employer’s representative representing the legal entity is authorised to do so. Again, the consent of the authorised representative to the transaction specific to legal entities will prevent problems from arising.
The termination of the employment contract in Turkey through rescission is possible only and only with the agreement of the parties wills. In other words, if the employee and the employer agree not to work and not to work anymore, they can terminate the employment contract by concluding a rescission agreement.
In cases where the wills of the parties are not respected and there are will defects, it should be accepted that there is no agreement. In the event that one of the parties does not agree with the other party on the termination of the employment contract in Turkey, a termination may be in question or it may be considered that one of the parties is resistant to fulfil its contractual obligation.
In case there are different claims as to whether the wills of the parties are in agreement or not, it would be appropriate to evaluate some formal elements of the agreement.
Another issue that needs to be discussed in this regard is the situation where one of the wills of the parties is defective under the pretence that the wills of the parties are in agreement. Within the framework of this claim, which is usually put forward by the employees, it can be claimed that the employer forced the signature of the agreement at the time of the agreement, that it was signed by mistake or that it was misled by the employer. It is clear that this issue should be resolved according to the general provisions, with the proof belonging to the claimant. Nevertheless, it is seen that the claims of will defect are taken very seriously within the framework of the protective regulations of the labour law.
In the presence of a rescission agreement, the employment contract in Turkey is terminated on the day the agreement is concluded, unless there is a contrary provision. Accordingly, the termination reflects a sudden situation. Although negotiations and negotiations on this issue take time, the termination of the employment contract with the rescission agreement expresses an instantaneous situation.
As it is generally accepted, it is possible to make an explicit or implicit written or verbal rescission agreement at any time while the employment contract continues. However, it immediately comes to mind that it would be appropriate to make it explicit and in writing in terms of proof. In this context, it would be appropriate for the parties to express their will on this matter clearly and, if possible, in writing, and to avoid issues that may result in a will injury in this text.
As explained above, the existence of the rescission agreement eliminates the employment contract and the obligations of the parties to this contract are terminated. In this context, the employee is released from the obligation to work and the employer from the obligation to pay wages. However, it is not always possible to apply this rule in an absolute sense, as the employment contract is a continuous type of contract and within the specific principles and dynamic structure of labour law. Additionally, it is seen that some special legal regulations give rise to some monetary rights even if the employment contract is terminated by the rescission agreement. However, in any case, since the rescission agreement is not a termination, its conclusion eliminates the rights that are linked to the declaration of a termination will. For example, as a rule, the payment of notice and severance indemnities, unemployment insurance allowance, and the filing of a reinstatement lawsuit are conditional on the realisation of a termination, the rescission agreement may prevent the emergence of such rights.
Considering some of the problems arising in practice, the termination of the employment contract in Turkey with a rescission agreement can be evaluated as follows.
The termination agreement, which was not encountered in the period of the Law No. 1475, is frequently encountered in the period of the Labour Law No. 4857. The main reason for this is that the termination of employment with a rescission agreement results in the non-application of job security provisions.
As it is known, according to Articles 18, 19, 20 and 21 of the Labour Law No. 4857 and Articles 24 and 25 of the Law No. 6356 on Trade Unions and Collective Bargaining Agreements, a termination by the employer is ruled invalid by a judicial decision and the employee is reinstated to his/her job. As can be seen, benefiting from this right depends on the termination of the employment contract in Turkey by the employer. In this case, as a rule, the existence of a rescission agreement results in the inability of the employee to benefit from this right.
In case of termination of the employment contract in Turkey, compensation may arise from the law or the content of the contract. Since the compensation items arising from the law are linked to the termination of the employment contract and the compensation items arising from the employment contract will be subject to special conditions within the contract, as a rule, these compensation items should no longer be requested with the rescission agreement.
Although this is the rule, it is also possible to agree otherwise. In other words, the parties may agree in the rescission agreement that the employment contract in Turkey will be terminated with certain compensation. They may even determine this compensation as notice and severance pay or one of them.
At this point, it should be stated immediately that the notice or severance pay or both of them, which are agreed to be paid by the rescission agreement, cannot be notice and severance pay in real terms. Because the most important of the conditions necessary for the emergence of the aforementioned indemnities is the termination of the employment contract with the will of one party. However, there is no termination by a party in the rescission agreement. For this reason, it should be accepted that the severance and notice indemnities to be paid in return for the employment contract terminated by the rescission agreement are calculated from the severance and notice indemnities mentioned in the rescission agreement.
As there will be no work with the rescission agreement as a rule, the employer’s obligation to pay wages disappears. However, this issue has a future-oriented meaning and does not cover past and unpaid work. As a matter of fact, in the fifth paragraph of Article 31 of the Labour Law No. 4857, it is obligatory to pay the employee’s wage and the benefits that can be measured in money arising from the contract and the law in full at the termination of the employment contract, thus preventing such loss of rights.
As can be seen, the application of the paragraph is conditional upon the termination of the employment contract, and termination is not mentioned separately and specifically. In this case, if the employment contract is terminated even with a rescission agreement, the wages and all benefits that can be measured in money that the employee is entitled to between the last date of payment of wages and other benefits and the date of the rescission agreement must be paid in full.
Additionally, it should be noted that the regulation does not only cover the bare wage, but also includes income items such as bonuses, premiums, in-kind and in-cash social benefits, leave fees, overtime work fees within the concept of all benefits that can be measured in money.
Provided that the explanations made in terms of wages remain the same, another payment that must be made to the employee by the provision of the law even in the presence of a rescission agreement is the wages for unused annual leave. Article 59 of the Labour Law No. 4857 stipulates that in the event of termination of the employment contract in Turkey for any reason, the employee must be paid for the unused annual leave. It can even be claimed that this regulation is a clearer and more understandable regulation than the regulation in Article 32 since it mentions any reason. When the employment contract is terminated with a rescission agreement, the employee must be paid the wages of the unused annual leaves calculated over the last wage.
In general, it is a requirement of the freedom of contract to recognise the validity of a mutual rescission agreement if it is determined that the parties have freely and explicitly applied for a rescission agreement. However, as it has been tried to be explained, the rescission agreement is an agreement, a contract, and its invalidity can be claimed at any time, as in all other contracts. As it has been emphasised more than once, the existence of error, fraud and duress, especially in cases of will infirmity, leads to the nullity of the rescission agreement. In this sense, the lawsuit for the cancellation of the rescission is subject to a 1-year prescriptive period.
Apart from this, the fact that the employee signs this agreement with a reservation clause also prevents the rescission agreement from giving rise to the consequences of the rescission agreement, and with this reservation clause, the employee declares that he does not have a will to agree. In this case, it does not seem possible for the rescission agreement to come into effect.
Another situation where the nullity of the rescission agreement may be in question is whether the rescission agreement actually conceals a termination. Indeed, if the rescission agreement conceals a termination, the rescission agreement becomes null and void, if it can be proved, as the rights attached to the termination have arisen. Concealment of an actual or probable termination through a rescission agreement is possible with a statement to be received from the employee during the establishment or continuation of the employment contract in Turkey or after its termination. In these cases, the rescission agreement will become null and void.
In this regard, the concept of reasonable benefit is utilized. In this context, it is necessary to examine whether the parties have a reasonable interest in concluding a rescission agreement in addition to the control of mischief of will, considering that the employer’s termination is suspected to be an implication of circumvention of the provisions of job security by making it appear as a mutual agreement.
Reasonable benefit is expected to be addressed by taking into account the fact that the request to conclude a rescission agreement comes from the employee and the employer and the characteristics of the concrete case.
The invalidity of the rescission agreement requires the existence of a termination based on the termination of the labour relationship. In this case, the issues of by whom the termination is carried out and whether it is a valid and valid termination will be important. At this point, the general education is that the termination is caused by the employer, especially when its effects on job security are considered.