Occasionally, conflicts between the employee and the employee or between the employee and the employer or violations of the workplace operation / order may arise in the workplaces. In such cases, employers act with the aim of clarifying and resolving the incident, and it may be possible to request a written defense of the employee. After this defense, some sanctions such as warning, wage cut and even termination arising from the law/contract/collective bargaining agreement may come to the fore.
When such a situation occurs, the legislation and judicial decisions must be complied within obtaining the employee’s defense, and it should not be forgotten that the outcome of a possible trial may change if these are not complied with. As a matter of fact, when the jurisprudence on the subject is examined, it is seen that if it is determined that the procedure for obtaining a defense from the employee is not complied with, the proceedings are concluded against the employer.
In article 19, which is one of the regulations that protects the employee in case the employment contract is terminated by the employer in labour relations within the scope of the Labour Law and job security, includes the provision “The employment of an employee engaged under a contract with an indefinite-term shall not be terminated for reasons related to the employee’s conduct or performance before he is provided an opportunity to defend himself against the allegations made. However, the employer’s right to terminate the employment contract in accordance with Article 25(clause II) of the Labour Act is reserved.”; This provision takes its basis from the “Except in cases that cannot reasonably be expected from the employer, an employee’s employment relationship cannot be terminated for reasons related to that employee’s conduct and performance without being given an opportunity to defend against the claims against him/her.” provision in Article 7 of the ILO Convention No. 158. Considering article 18 of the Labour Law, it is concluded that the defense of the employee should be obtain in the terminations due to reasons related to the conduct and performance of the employee who has more than six months seniority in workplaces that employ thirty or more employees, provided that the employment contract is indefinite.
The Procedure of Requesting the Employee’s Defense
The obligation to take a defense, which is included in article 19 of the Labour Law, is in question in cases related to the behaviour of the employee and the decrease in performance observed in work efficiency. On the other hand, justified reasons that do not comply with the rules of morality and goodwill in Article 25/2 of the Labour Law are specifically stated. The reason for this is to underline that although the reasons given in the article 25/2 are based on the personality of the employee, they are not within the scope of the obligation to obtain a defense. It should be noted that when the Supreme Court’s Decision of Joint Chambers dated 19.10.2018 is examined; Considering the
systematics of the Labour Law No. 4857 and this decision, it is concluded that there is no obligation to take the defense of the employee in the termination process to be carried out by the employer based on health reasons, situations contrary to moral and goodwill rules, compulsory reasons, and custody and detentions that exceed the notification period specified in Article 25 of the Labour Law. In addition to these, the legislator did not need to take a defense in termination due to operational requirements; because it can be said that taking the defense of the employee in such a termination will not have an effect on the termination will.
– In addition, employers are authorized to impose disciplinary punishments in the presence of certain conditions in labour law, and it is not regulated whether the employee’s defense must be taken before the wage cut penalty is applied. However, as a rule, there is no obligation to take the defense of the employee before disciplinary punishment is applied in labour law (qqv. The decision of 9th Civil Chamber of the Supreme Court Merit No. 2016/9320 Decision No. 2016/8463 dated 5.4.2016). In
addition, we should point out that; The employer is only obliged to take a defense before the termination of the employment contract. When giving a warning to the employee, as a rule, there is no obligation to take the defense of the employee. Therefore, while the employee is given a warning for his/her behaviour, failure to take his/her defense will not invalidate the warning.
– On the other hand, when the termination of the contract comes to the fore, the defense must be requested before the termination of the contract in cases of termination where the employee’s defense must be taken. It is for this reason that; Taking the employee’s defense together with the termination notice or after the termination or taking a defense within the notice period will result in the termination being invalid.
-The employee should be invited to give a defense before the termination, the reason for dismissal due to the employee’s behaviour should be clearly and precisely stated in the invitation letter. The employee must be notified to be present at the place, day and time specified in a reasonable period of time, and if he is not present, he can give a written defense; It is imperative that he be reminded that if he is not present at the place notified on the day and time specified and he does not give a written defense despite this, he will be deemed to have waived to give a defense.
-The defense must be requested within a reasonable time after learning of the incident which is the subject of the defense. In practice, however, it is seen that the employers demand the defense of the employee based on an act of a long time ago and by this means, the employee can be a subject to some sanctions, and this situation will be interpreted against the employer in a possible trial.
– In addition, if the employee refrains from making a defense, this situation should be recorded, preferably in the presence of witnesses, by writing a note about this situation under the defense request or by preparing a report.
Form of the Defense
There is no legal regulation in the Law No. 4857 and other relevant legislation regarding the form and method of the defense to be obtained from the employee. However, since the employer will be responsible for proving that the defense has been obtained from the employee, a written defense will provide ease of proof. In addition, it is not sufficient for the Employer to demand the employee’s defense on its own, and a reasonable time should be given for the employee to present his/her defense and to submit relevant evidence, if any. If the employee does not use his/her right to defense within this period, the employee should be reminded that he/she will be deemed to have waived his/her right to defense.