Razones de utilización legítima de CDD: razones materiales y objetivas

Remarks

Art. 11 LA: A FTC shall be based on "objective conditions like the completion of a certain work or the materialization of a certain event".
"An employment contract for a definite period must not be concluded more than once, except when there is an essential reason which may necessitate repeated (chain) contracts. Otherwise, the employment contract is deemed to have been made for an indefinite period from the very beginning.
Chain contracts based on essential reasons shall maintain their status as contracts made for a definite period".

Número máximo de CDD consecutivos: sin restricción

Remarks

No limitation provided that there is an essential reason for each renewal (art. 11 LA).

Duración máxima acumulativa de CDD consecutivos: sin limitación

Remarks

No limitation provided that there is an essential reason for each renewal (art. 11 LA).

% de trabajadores bajo CDD: 8.7

Remarks

Data for the first trimester 2010: Employees with a contract of limited duration (% of total number of employees)
Source: Eurostat
Those statistics are based on the following definition:
"A job may be considered temporary if employer and employee agree that its end is determined by objective conditions such as a specific date, the completion of a task or the return of another employee who has been temporarily replaced (usually stated in a work contract of limited duration). Typical cases are: (a) persons with seasonal employment; (b) persons engaged by an agency or employment exchange and hired to a third party to perform a specific task (unless there is a written work contract of unlimited duration); (c) persons with specific training contracts".

Duración maxima del periodo de prueba (en meses): 2 mes(es)

Remarks

Art. 15 LA: the parties can agree to a trial clause in the employment contract which shall not exceed 2 months. It can however be extended by collective agreement. Within the trial period the parties are free to terminate the contract without observing the notice requirements.
It is worth noting that employees with less than 6 month's service are excluded from the job security provision which provides for protection against unjustified termination (art. 18 LA - see below valid grounds).

Obligación de motivar el despido: Si

Remarks

Art. 19 LA.
This requirement only applies if the following criteria are fulfilled:
- the employee is engaged for an indefinite period, and
- the employee has worked for at least 6 months, and
- the employee works in an establishment with at least 30 employees.
In addition, are also excluded from this requirement: the employer's representatives and his assistants authorized to manage the entire enterprise as well as the employer's representatives managing the entire establishment who are also authorized to recruit and terminate employees.

Motivos autorizados (despido justificado): cualquiera justa causa

Remarks

* Art 18 LA (termination with a valid reason= job security provision): There must be a valid reason for dismissal connected with the capacity or conduct of the employee or based on the operational requirements of the undertaking.
This requirement only applies if the 3 following criteria are fulfilled:
- the employee is engaged for an indefinite period, and
- the employee has worked for at least 6 months, and
- the employee works in an establishment with at least 30 employees.
In addition, are also excluded from this protection: the employer's representatives and his assistants authorized to managed the entire enterprise as well as the employer' representatives managing the entire establishment who are also authorized to recruit and terminate employees.
In case of such dismissal with just cause, the notice requirements shall be complied with.
* Therefore, employers can dismiss employees falling outside the scope of application of article 18 LA (job security provision) without having to present a valid reason provided that the notice requirements are observed in accordance with art. 17 LA. However, the employer is not entirely free in dismissing those employees since in the event of abusive termination of his or her right to terminate, he or she shall be liable to pay compensation amounting to 3 times the wages for period of notice (= max. 24 weeks).
* In addition, the LA allows the employer or the employee to immediately terminate an employment contract for a just cause whether for a defi­nite or indefinite period, before its expiry or without the prescribed notice periods. This is referred to in the law as the "the breaking of the employment contract".
The law provides a list of reasons for breaking the contract for a just cause which are divided in three groups for the employee and four groups for the employer (Art. 24 and 25 LA), namely, reasons of health; immoral or dishonourable conduct or other similar behaviour and force majeure. There is also a fourth group for the employer which is the employee being under arrest or under custody.
The employer is entitled to break the employment contract, whether for a defi­nite or indefinite period, before its expiry or without the prescribed notice periods in the above cases.

Motivos prohibidos: estado civil, embarazo, licencia de maternidad, presentación de una queja contra el empleador, enfermedad o accidente profesional temporal, raza, color, sexo, religión, opinion política, afiliación sindical y actividades sindicales, lengua, nacimiento

Remarks

*According to Art. 18 LA (job security provision) the following, inter alia, shall not constitute a valid reason for termination:
a) union membership or participation in union activities outside working hours or, with the consent of the employer, within working hours;
b) acting or having acted in the capacity of, or seeking office as, a union representative;
c) the filing of a complaint or participation in proceedings against an employer involving alleged violations of laws or regulations or recourse to competent administrative or judicial authorities;
d) race, colour, sex, marital status, family responsibilities, pregnancy, birth, religion, political opinion and similar reasons;
e) absence from work during maternity leave when female workers must not be engaged in work, as foreseen in Article 74;
f) temporary absence from work during the waiting period due to illness or accident foreseen in Article 25 of the Labor Act, subsection I (b).
This provision only applies if the 3 following criteria are fulfilled:
- the employee is engaged for an indefinite period, and
- the employee has worked for at least 6 months, and
- the employee works in an establishment with at least 30 employees.

* The general provision on non discrimination (art. 5 LA) covers all the employees in the scope of the EA and prohibits discrimination in employment (including termination) based on language, race, sex, political opinion, philosophical belief, religion and sex or similar reasons. Unless there are essential reasons for different treatment, the employer must not discriminate between a full-time and a part-time employee or an employee working under a contract concluded for a definite period and one working under a contract concluded for an indefinite period. In addition, except for biological reasons or reasons related to the nature of the job, the employer must not make any discrimination, either directly or indirectly, against an employee in the conclusion, conditions, execution and termination of his employment contract due to the employee's sex or maternity.

* See also the Trade Union Act, No. 2821 of 2983, as amended which applies to all workers (expect for military personnel which are prohibited from joining a trade union) and employers. Article 31 prohibits discrimination in employment (including with respect to termination) on the ground of trade union membership as well as dismissal due to the worker's participation to trade unions' activities. If en employer fails to observe these prohibitions, he or she shall be liable to pay compensation equivalent at least to the worker's annual wages.

Trabajadores que gozan de una protección particular (fuero): representantes de los trabajadores

Remarks

* See art. 30 of the Trade Union Act, No. 2821 of 2983, as amended in 2002 which applies to all workers (expect for military personnel which are prohibited from joining a trade union) and employers. Following the 2002 amendment (Act no 7773) article 30 reads as follows:
Where an employer terminates a shop steward's open-ended employment contract, the provisions of the Labour Act (no. 1475) shall apply.
Where that shop steward's employment contract has been terminated solely because of his/her trade union activities, compensation shall be awarded amounting to not less than one year's wages pursuant to Article 13/D of Act no. 1475.
The employer shall not change a shop steward's place of work or make any fundamental change in his/her work unless the shop steward agrees to this in writing. Otherwise any change shall be void.
(available at: http://www.ilo.org/dyn/natlex/docs/SERIAL/63979/63024/F1481858424/TUR63979.PDF)
* There is no additional protection for pregnant women or women on maternity leave other than the prohibition to dismiss a women on those grounds (art. 18 LA) or the general prohibition of discrimination on the grounds of maternity (art. 5 LA - see prohibited grounds).

Forma de la notificación del despido al trabajador: escrita

Remarks

Art. 19 LA provides that the notice of termination for employees, who are covered by the job security provision, shall be given by the employer in written form. Besides, the employer is obliged to specify the ground of termination clearly and definitely.

[The same article also requires the employer to allow an employee under a contract with an indefinite duration to defend himself against the allegations made against him or her in the event of dismissal for reasons related to the worker's conduct or performance].

The notice form for the termination of employees excluded from the job security provisions is not specified.

Plazo de preaviso:

Remarks

Art. 17 LA:
The notice period to be observed by the employer before terminating a contract of indefinite duration varies according to the employee's length of service, as follows:
- 2 weeks if the employee has been employed for less than 6 months;
- 4 weeks if the employee has been employed for at least 6 months but less that one-and-a-half years;
- 6 weeks if the employee has been employed for at least one-and-a-half years but less than 3 years;
- 8 weeks if the employee has been employed for more than 3 years.
These are minimum periods and may be increased by contracts between the parties.

duración de servicio ≥ 6 meses:

  • Todos: 2 semana(s).

duración de servicio ≥ 9 meses:

  • Todos: 4 semana(s).

duración de servicio ≥ 2 años:

  • Todos: 6 semana(s).

duración de servicio ≥ 4 años:

  • Todos: 8 semana(s).

duración de servicio ≥ 5 años:

  • Todos: 8 semana(s).

duración de servicio ≥ 10 años:

  • Todos: 8 semana(s).

duración de servicio ≥ 20 años:

  • Todos: 8 semana(s).

Indemnización sustitutiva de preaviso: Si

Remarks

Art. 17 LA.

Notificación a la administración: Si

Remarks

* Art. 62 of the Trade Union Act provides for a mandatory 'post-dismissal notification' to the regional directorate of Labour as well as the Ministry of Labour and Social Security since they must be informed by the employer of the names of employees whose contracts have ended for any reason, until the 15th day of the following month.
Note that this notification obligation also applies to any recruitment.

Notificación a los representantes de los trabajadores: No

Aprobación de la administración publica o de organismos judiciales: No

Acuerdo de los representantes de los trabajadores: No

Notas / Comentarios

Notas

The notice requirements apply to both employees covered by the job security provisions (= termination with a valid reason) and those not covered by such provisions (= no justification required).
This job security provision applies to employees who fulfil all the following criteria:
- the employee is engaged for an indefinite period, and
- the employee has worked for at least 6 months, and
- the employee works in an establishment with at least 30 employees.
When terminating a contract for a just cause ("breaking of the contract) for reasons related to health, misconduct, force majeure, arrest and custody, as listed in art. 25 the employer does not have to observe any notice requirements.

Definición de despido colectivo (número de empleados afectados): Within 1 month, terminations for reasons of an economic, technological or similar nature necessitated by the requirements of the enterprise affecting at least:
- 10 employees in establishments with 20 to 100 employees;
- 10% of employees in establishments with 101 to 300 employees;
- 30 employees in establishments with 301 and more employees

Remarks

Art. 29 LA.

Consultación previa con los sindicatos (representantes de los trabajadores): Si

Remarks

Art. 29 LC.

Notificación a la administración: Si

Remarks

Art. 29 LA: written notification to the relevant regional directorate of labour and the Turkish Employment Organization at least 30 days prior to the intended collective dismissals. Information to be communicated include the reason for the contemplated lay-off, the number and groups to be affected as well as the length of time the procedure is likely to take.

Notificación a los representantes de los trabajadores: Si

Remarks

Art. 29 LA: written notification to the union representatives at least 30 days prior to the intended collective dismissals. Information to be communicated include the reason for the contemplated lay-off, as well as the length of time the procedure is likely to take.

Aprobación de la administración publica o de organismos judiciales: No

Acuerdo de los representantes de los trabajadores: No

Reglas de prioridad para los despidos colectivos (consideraciones sociales, edad, años de servicio): No

Remarks

No statutory selection criteria.

Obligación del empleador de considerar solucionés alternativas al despido (transferencia, formación...): Si

Remarks

Art. 29 LC: the union representatives shall be consulted on the measures to be taken to avert or to reduce the terminations as well as the measures to mitigate their adverse effects on the workers concerned.

Reglas de prioridad para la re-contratación: Si

Remarks

Art. 29 LC: If the employer intends to employ employees for a work with the same qualifications within six months from the finalization of mass dismissal, he/she has to call back the laid-off workers whose qualifications are suitable, giving them priority over other applicants.

Indemnización por despido:

Remarks

The Labour Act of 2003 No. 4857 did not establish new rules on severance pay, expect for transitional article 6 which foresees the creation of a severance pay fund. This article also provides that article 14 if the repealed Labour Act No 1475 will remain in force and the employees entitlements to severance pay shall be protected until a new law is enacted. As of July 2010, no law on the creation of a severance pay fund has been enacted.
Under art. 14 LA No. 1475, in the event of termination by the employer of the contract of employment of an employee with at least one year of service for reasons other than for malicious, immoral or dishonourable conduct or other similar behaviour; the employer must pay seniority severance pay equal to 30 days' wages for each complete year of service or in proportion for any fraction thereof, effective from the date of employment and for the entire duration of the contract.
This means that an employee is entitled to severance pay if the employer terminates the employment contract with notice of both employees covered by and excluded from the job security provisions (art. 17 LA), or without notice on account of the employee's health (art. 25/I LA) or for force majeure.

Severance pay is also due in the following circumstances:
- if the event the contract is terminated by either party on account of compulsory military service; or for the purpose of qualifying for an old-age or disability insurance pension or a lump-sum payment from the legally established social security fund; or voluntary termination of the contract by a woman employee within one year from the date of her marriage
- if the employee immediately terminate the contract for a just cause (for reasons of health, immoral or dishonourable conduct by the employer and force majeure).

duración de servicio ≥ 6 meses: 0 mes(es)

duración de servicio ≥ 9 meses: 0 mes(es)

duración de servicio ≥ 1 año: 30 día(s)

duración de servicio ≥ 4 años: 120 día(s)

duración de servicio ≥ 5 años: 150 día(s)

duración de servicio ≥ 10 años: 300 día(s)

duración de servicio ≥ 20 años: 600 día(s)

Indemnización por despido por razones económicas:

Remarks

No specific redundancy payment. The employee whose contract is terminated with notice for economic reasons will be entitled to severance pay.

duración de servicio ≥ 6 meses: 0 día(s)

duración de servicio ≥ 9 meses: 0 día(s)

duración de servicio ≥ 1 año: 30 día(s)

duración de servicio ≥ 2 años: 60 día(s)

duración de servicio ≥ 4 años: 120 día(s)

duración de servicio ≥ 5 años: 150 día(s)

duración de servicio ≥ 10 años: 300 día(s)

duración de servicio ≥ 20 años: 600 día(s)

Compensación por despido injustificado - libre determinación de la Corte: No

Compensación por despido injustificado - límites legales (techo calculado en meses o método de calculo): - Termination not justified by a valid reason (employee falling within the scope of the job security provision (art. 18 LA): reinstatement is the remedy, compensation shall be not less than 4 month's wages and not more than 8 month's wages if the employer does not respect the re-employment order and do not re-employ the dismissed employee (+ additional indemnity of up to 4 months for the period of time between notice of termination and the court ruling + severance pay)
- Abusive termination (= abuse of the right to terminate with notice employees not covered by the job security provision): 3 times the wages of the notice period (= max. 24 weeks for workers with more than 3 years' seniority).
-Discriminatory dismissal (= violation of the general principle of equal treatment in terminating the employment relationship): compensation shall be up to 4 month's wages.
- Termination due to trade union membership or participation in trade union's activities: compensation shall be not less than 12 month's wages.

Remarks

- Termination not justified by a valid reason: art. 21 LA
- Abusive termination: art. 17 LA
- Discriminatory dismissal: art. 5 LA
- Termination due to trade union membership or participation in trade union's activities: art. 31 TUA

In addition in the event of illegal breaking of the contract (summary dismissal), employees covered by the job security provision are entitled to the same compensation as for termination not justified by a valid reasons (art. 25 LA) while employees excluded from the job security provision will not be entitled to reinstatement but only to compensation for the notice period not observed.

Posibilidad de readmisión: Si

Remarks

Art. 21 LA: if the court or the arbitrator concludes that termination is not justified by a valid reasons, the employer shall reinstate the employee
Reinstatement is only available (and mandatory) for employees covered by the job security provision.
Discriminatory dismissal, abusive terminations and dismissal based on trade union membership or activities do not give right to reinstatement.

Conciliación previa obligatoria: Si

Remarks

No provision found in the legislation reviewed.
Information was found in secondary sources:
"The court endeavours to reconcile the parties at its first hearings. if conciliation fails, or if one of the parties is absent or is not represented, the proceedings must continue and judgment must be given on the facts at issues".
Dereli, T. (2006), 'Labour Law and Industrial Relations in Turkey', in R. Blanpain (ed.), International Encyclopaedia of Labour Law and Industrial Relations, Vol. 13, ELL. Suppl. 307, April 2006, (Alphen aander Rijn, Kluwer Law International), p. 215

Corte o Tribunal competente: tribunal del trabajo

Remarks

See art. 20 LA: The employee who alleges that no reason was given for the termination of his employment contract or who considers that the reasons shown were not valid shall be entitled to lodge a complaint against that termination before the Labour Court within one month of receiving the notice of termination.
See also the Labour Court Act (No. 5521 of 1950) which establishes jurisdiction of the labour courts over individual disputes arising from the individual employment contracts or any claims under the Labour Act.

Arbitraje: Si

Remarks

According to art. 20 LA which applies to employees covered by the job security provision, the parties can refer the dispute concerning unjustified termination to private arbitration if they so agree.

Duración del procedimiento: 2mes(es) (statutory)

Remarks

Art. 20 LA: the labour court must apply fast-hearing procedures and conclude the case (unjustified termination dispute) within 2 months. If the labour court's decision is appealed, the Court of Cassation must issue a definitive verdict within one month.