Employment & Labour

LOSS OF THE EMPLOYER’S TRUST IN ITS EMPLOYEES – THE “TERMINATION OF SUSPICION” TERM

Term

As the famous saying goes, “Any kind of peaceful cooperation between people is primarily based on mutual trust”. It is indisputable that the phenomenon of trust constitutes the basis of all kinds of relationships. In employment relations, due to the nature of the employment contract that establishes a personal relationship between the parties, it cannot reflect that trust is an essential factor concerning the continuation of the contract. As a matter of fact, in the event that the loss of trust, which we can also name as suspicion, renders the continuation of the employment relationship between the parties unbearable, the continuation of the aforementioned employment relationship should not be expected from the parties. 

On the other hand, the term of “termination of suspicion” is defined in the doctrine mainly as the loss of trust between the parties, which is necessary for the continuation of the employment relationship, due to strong suspicion regarding the behaviour of the worker that constitutes gross violation of the employment contract or the act that constitutes a crime. In this case, the termination to be carried out by the Employer arises as a result of the fact that the suspicion regarding the behaviour of the employee that cannot be proven with conclusive facts removes the trust relationship between the parties. In other words, there is no proven, punishable act or crime, and the fact of trust, which is necessary for the continuation of the employment relationship between the parties, will be removed. We can say that the main basis concerning this type of termination is the Employer’s ability to protect its business against the problems and dangers that may arise with the possible action of the employee.

Termination of Suspicion in Light of the Precedent Judgments and Doctrinal Views

Since there is no direct regulation in our legislation concerning the termination of suspicion, it has been included in our Labour Law practice by the Supreme Court decisions. In the judicial decisions, it has been evaluated that the termination of suspicion does not give the Employer the right to terminate with just cause, but such situation may constitute a reason for termination “caused by the incapacity of the worker” in Article 18 of the Labour Law.

In line with the precedent decisions, we see that in order for the termination of suspicion to be realized, first of all, there must be a suspicion regarding the employee has materially violated his/her contractual obligations or committed a criminal act in the workplace. In other words, it is indicated that the existence of suspicion is not sufficient concerning an act has been committed and that such suspicion should be supported by objective tangible facts.. In order for a doubt that can be considered legally valid, there must be an objective action that will support the Employer’s suspicions and, in a sense, justify the loss of confidence, not the Employer’s subjective assessments. In the event of it is concluded that the suspicion is based on a suspicion existing only in the person of the Employer, then it cannot be mentioned that the employee’s employment contract can be terminated based on the termination of the suspicion.

On the other hand, it can be said that suspicion cannot be all kinds of doubt, but there is a strong suspicion that a crime that can definitely be associated with the employment relationship or a behaviour that will constitute a gross violation of the contract has taken place. In this sense, the Employer must be able to prove in a possible dispute that he has made every effort in order to clarify the event with the presence of strong suspicion. In other words, the Employer must have made every effort required by the rules of honesty and must have complied with the research and investigation obligation.

In the doctrine, it is emphasized that the initiation of a possible criminal proceeding against the employee should be evaluated independently from the termination of suspicion. Thus, the fact that a criminal investigation has been initiated against the employee is not sufficient by itself to create an objective and strong suspicion; in other words, the mere initiation of a criminal investigation against the employee does not constitute a reason concerning the termination of suspicion. On the other hand, we see that this issue is interpreted broadly in certain judicial decisions

In the termination of suspicion to be made by the employer, it is necessary to investigate whether the conditions of “valid reason arising from the competence of the worker…”, which is regulated under Article 18 of the Labour Law, are met and also to be subject to the consequences of this type of termination. The first result of evaluating the termination of suspicion within the scope of Article 18 of the Labour Law is the necessity of obtaining the employee’s written defence.

As it is known, Article 19 of the Labour Law regulates that in cases where an employee’s indefinite-term employment contract is terminated within the scope of Article 18 of the Labour Law concerning reasons related to the employee’s behaviour or productivity, the right of defence against the allegations against him should be given to the employee. In the event of termination, the written defence of the employee must be requested by the Employer. Secondly, since there is a termination within the scope of Article 18 of the Labour Law, in case of termination of employment, the employee must be paid severance and notice indemnity (or the notice must be used). Finally, in the event of a termination of suspicion with legal conditions in line with the judicial decisions, it can be said that the employee does not have the right to substitute a reemployment lawsuit with the invalidity of the termination with the request of reemployment within the framework of Article 20 of the Labour Law.

Ayça Kortel, Attorney at Law

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