Employment & Labour

WHAT DO THE CURRENT JUDICIAL DECISIONS ABOUT THE TERMINATION OF THE EMPLOYMENT CONTRACT BY MUTUAL CONSENT UNDER TURKISH LABOR LAW EXPLAIN TO US

The mutual rescission agreement which can be defined as the termination of the employment contract with the parties’ declarations of will compatible with each other, has not been specifically regulated in the Labor Law no 4857. The mutual rescission agreement took its source from the principle of freedom of contract, which is included in the Constitution and regulated by the expression “ Everyone has the freedom to work and contract in any field they wish.” 

What does “the Termination of the Employment Contract by Mutual Consent” Mean?

Basically, the termination by mutual rescission agreement is the “termination of the employment contract between the employee and the employer by agreement.” The termination of the employment contract in this way does not constitute a termination, since in the mutual rescission agreement, there is a merger of two mutual wills in the same direction. In this case, since there will be no termination by the employer, it is interpreted that the employee cannot file a reemployment lawsuit after the employment contract is terminated with a legally valid mutual consent agreement. However, the opinion of the Supreme Court in cases that the termination by mutual consent offer comes from the employer; if the employer does not provide an additional benefit to the worker in addition to his legal rights, the reemployment lawsuit can be substituted. It should be noted that the relevant interpretation of the Supreme Court “only” relates to cases that the termination by mutual consent offer comes from the employer and no additional benefit is provided to the employee.

The Contract of Mutual Consent Has Been Included in the Supreme Court’s Decisions and It Has Been Stated That There Are Some Conditions for the Validity of the Contract;

This agreement must be signed with the free will of the employee. The Supreme Court accepts that if the employee’s will is impaired for reasons such as intimidation or deception, mutual consent is invalid.

It should be noted that in this agreement inclusion of statements such as “My legal rights are reserved.” will void the contract. As a matter of fact, the Supreme Court frequently mentions in its decisions that if the employee makes a reservation, the contract made cannot be said to be a valid and legal mutual consent agreement.

However, different principles are taken into account by the Supreme Court for in cases that the mutual consent offer comes from the employee or the employer. As follows;

If the Offer of Mutual Rescission Comes from the Employee;

In case the rescission offer comes from the employee, the payment of an amount corresponding to the severance and notice pay is considered sufficient in terms of reasonable benefit.

As a matter of fact, in a decision of the Supreme Court dated 15.01.2018; evaluated with the expressions following; “According to the practice of our chamber, the decision to pay an amount corresponding to the severance and notice pay in terms of the mutual rescission agreement made upon the request of the worker is considered sufficient in terms of the reasonable benefit of the worker in signing the contract; the rescission agreement, which cannot be proven to be based on a violation of will due to the reason explained, and which is understood to have been signed upon the request of the plaintiff, which stipulates the payment of severance and notice indemnity and 2 months’ wages, is erroneous to accept instead of rejecting the lawsuit.”

If the Offer of Mutual Rescission Comes from the Employer;

In case the mutual consent offer comes from the employer; the Supreme Court seeks the existence of an additional payment to be made to the employee in addition to the legal rights of the worker while evaluating whether there is a reasonable benefit provided to the employee. As a matter of fact, the evaluation made in a decision of the 9th Civil Chamber of the Supreme Court on the subject ; “…in case of a dispute, a mutual consent aggreement was made on 28.09.2017 upon the offer from the employer, and in this case, as explained above, in order for mutual consent to be valid, the claimant worker must have a reasonable benefit (an additional benefit) in signing the agreement. Again, according to the practice of the Chamber, if the severance and notice pay with additional payment has been made to the employee in accordance with the characteristics of the concrete case in general, it is considered that reasonable benefit is provided here. The point to be considered here is that the payment that will provide reasonable benefit is made, and it does not matter under which name the payment is made.”, revealed that it is essential to provide an additional benefit to the employee.

İpek Güney

Fn:

The 9th Civil Chamber of the Supreme Court, Merit No. 2016/33229 Decision No. 2018/150 dated 15.1.2018

The 9th Civil Chamber of the Supreme Court, Merit No.  2016/21357 Decision No.  2017/14484 dated 28.9.2017

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