Employment & Labour

INSPECTION OF OBJECTIVE CONDITION IN FIXED-TERM EMPLOYMENT CONTRACTS

Fixed-term employment contract is defined in Article 11 of the Labor Law No. 4857 as “an employment contract concluded in writing between the employer and the employee, depending on objective conditions such as the completion of a certain job or the occurrence of a certain phenomenon”. As it can be understood from this definition, the existence of an objective condition is necessary for the establishment of fixed-term employment contracts. Even though the examples of the work being of a fixed-term, the completion of a certain work or the emergence of a certain phenomenon are given in the Labor Law No. 4857 in terms of objective condition, It is not a relevant census constraint.

What should be understood from the fact that the work is a fixed-term is that the termination date of the contract is known or foreseeable at the time of the contract. However, in some cases, even if the employment contract is not tied to a certain period of time, it can be understood from the purpose of the work that the termination date of the contract is known or predictable, and it can be concluded that the employment contract is for a definite period. In this regard, In a decision of the Supreme Court dated 18.02.2008 that the contract is implicitly bound to a period if it is understood from the purpose of the work that the employment contract is for a fixed period in cases where the employment contract is not explicitly bound to a certain period by the parties.1

However, there are also decisions of the Supreme Court in which the nature of the work and the nature of the worker are taken into account when evaluating the quality of the contract. In a decision of the Supreme Court dated 04.11.2003; has not accepted consecutive employment contracts for an indefinite period arguing that the employer has an interest in making a fixed-term employment contract every year, despite the fact that the plaintiff, who worked as a lecturer at the university with one-year fixed-term employment contracts in successive terms, signed 7 separate employment contracts.2 As can be seen from the relevant decision, the characteristics of each concrete event are also taken into account, the nature of the work performed by the employee and, when necessary, the nature of the employee is examined in detail in the successive evaluation of employment contracts. 

It is clear that the fixed-term work also includes the completion of a certain work. In cases such as the works given by tender and the completion of a certain project, there is both the condition of the work for a fixed period of time and the completion of a certain work. In a decision of the Supreme Court dated dated 27.10.2005, evaluated that the contract made due to the nature of the project is for a fixed period, since the plaintiff’s duty is the chief welding inspector in the pipeline.3

However, there may be cases where the duration of the employment contract is determined by law. In these cases, it is not obligatory to have the objective conditions sought by the Labor Law No. 4857.In a decision of the Supreme Court dated 01.04.2015, has ensured that an objective condition is not sought in these contracts in cases where the duration of the employment contract is determined by law since it is a legal obligation for the contracts made in accordance with the period specified in the law to be fixed-term.4

It should be noted that an evaluation is made according to the concrete event in determining the situations that will constitute an objective reason. As it is clearly understood from the wording of Article 11 of the Labor Law No. 4857, there is no limited counting basis in terms of the existence of objective reasons. In this respect, the concrete characteristics of each case are taken into account by the Supreme Court, and the determination of whether the employment contract is for a fixed term is evaluated meticulously by considering the balance of interests of the employee and the employer.

The Court of Appeals for the 9th Circuit, E. 2007/24530, K. 2008/171, T. 18.02.2008

The Court of Appeals for the 9th Circuit, E. 2003/5165, K. 2003/18625, T. 04.11.2003

The Court of Appeals for the 9th Circuit, E. 2005/28805 ve K. 2005/34837, 27.10.2008

Supreme Court Assembly of Civil Chambers , E.2013/22-1943, K.2015/1131, T.01.04.2015

 

Türküm Türkmen
Attorney At Law

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