Your Labour and Social Security Expert

IS IT POSSIBLE TO END THE LABOUR AGREEMENT WITHOUT THE TERMINATION OFTHE AGREEMENT?

Abstract

Labour agreement is the agreement consisting of dependent service by one party (employee) and the other party (employer) undertaking the payment of wage in accordance with Labour Law no 4857. Labour agreement is not subject to a special way unless otherwise specified in the Law. The termination of labour agreement by one of the party’s will is the major condition terminating the labour agreement. Other conditions involve death, expiration of the term of the agreement and the parties’ agreement (mutual rescission agreement). Being the most important one among these conditions, the validity of the mutual rescission agreement is a practice that needs to be audited objectively thereby taking the principle of construing in favour of the employee into account.

KEYWORDS

Death, expiration of the term of the agreement, mutual rescission agreement

  • INTRODUCTION

The definition of labour agreement appears in its simplest expression in Law no 4857 [1] It was defined in the first paragraph of article 8 of the Law: “labour agreement is the agreement consisting of dependent service by one party (employee) and the other party (employer) undertaking the payment of wage. Labour agreement is not subject to a special way unless otherwise specified in the Law.”

The subject of the work will be the matters regarding on which conditions the labour agreement would end and/or be ended apart from termination.

  • CONDITIONS ENDING THE LABOUR AGREEMENT OTHER THAN TERMINATION

While talking about the conditions ending the labour agreement, the first condition to be uttered is the termination of the agreement by one of the parties’ will. There are other conditions when the labour agreement ends and/or is ended other than such condition. They are death, expiration of the term of the agreement and parties’ agreement (mutual rescission agreement).

  • Death

Death is one of the conditions that end the labour agreement other than termination. Labour agreement is a phenomenon that concerns the entities of the parties, namely the wage earner and the employer. In this respect, being one of the parties, the wage earner should perform the wage earner’s service in person. The labour agreement automatically ends when the employee dies. It is not possible to pass the labour agreement to heirs or to be continued by the heirs. This does not change in case of absence or presumptive death as well. According to article 440 of Turkish Code of Obligations no 6098[2] the agreement automatically ends upon the death of the employee. The employer is held liable to make a payment in the amount of one month’s wage to the employee’s alive wife and minor children or dependants starting from the date of death; two months’ wage if the service relationship has continued for more than five years.

However, the case is different in case of the employer’s death. The labour agreement shall not end in this case. This is because what is important in the labour agreement is the entity of the employee. In case of the employer’s death, the agreement shall pass to the employer’s heirs and the agreement shall continue between the heirs and the employee. If the agreement is dominantly (mainly) made by taking the entity of the employer; the agreement shall end upon the employer’s death pursuant to article 441 of Turkish Code of Obligations numbered 6098. However, the employee could demand a fair compensation from the heirs for the damages incurred due to the earlier termination of the agreement [3].

  • Expiration of the Term of the Agreement

According to article 430 of the Turkish Code of Obligations numbered 6098, the labour agreements which are made for a certain term automatically expire upon the expiration of the agreed terms. However, the parties could also agree contrary to that.

Essential labour agreements are of indefinite period as a rule in business life. Labour agreements of definite duration are an exception and there should be some objective reasons to mention such an agreement.

In this regard, labour agreements are of definite duration due to the quality of the labour or in case of the presence of objective conditions such as a certain phenomena. Nevertheless, there is no such limitation in labour relationships within the scope of the Code of Obligations. Contracted either subject to the Labour Law or to the Code of Obligations; labour agreements of definite duration shall automatically terminate upon the expiration of the duration. However, if the employee continues to work after the expiration of the duration, there will be silence and renewal case and this will transform the agreement to that of indefinite duration [4].

  • Parties’ Agreement (Mutual Rescission Agreement)

Parties entering into a debt/credit relationship thereby making an agreement could remove such debt/credit relationship by making a new agreement if they wish. The agreement which is made to break the agreement made by free will by the same free will again is called “mutual rescission agreement”. In this respect, the subject of the mutual rescission agreement shall be breaking the previously made labour agreement. Mutual rescission agreement shall depend on the general principles of the code of obligations in making and determining its scope and nature because it is not regulated in our laws but has the characteristics of an agreement [5].

In its decision in this regard, the supreme court explains as follows: The employee and employer wills’ uniting in termination shall not be characterized as one party’s termination. The legal consequences of the mutual rescission agreement and the legal consequences of termination are actually different from each other. Although this type of termination is not found in the Labour Law, mutual rescission agreement will have been established upon the party’s acceptance of the explanation containing the implementation of an agreement on mutual termination of the labour agreement as communicated by one of the parties to the other party. In the mutual rescission agreement, as a requirement, the aim is to end the labour relationship thereby agreeing by appropriate declaration of intention. Therefore, the requirement of making mutual rescission agreement cannot be considered termination and cannot be turned into termination. In this regard, the way, implementation, scope and validity of the mutual rescission agreement shall be determined in accordance with the provisions of the Code of Obligations. And, since the termination of the labour agreement through mutual rescission is closely related to Labour Law, the principle of construing in favour of the employee shall be taken into consideration other than the general provisions in construing mutual rescission as in construing the labour agreement. There shall be no obligation in the form of mutual rescission agreement but it should be mentioned that it needs to be made in written for proof[6].

Within the scope of freedom of contract, which is a constitutional right, the parties of the labour agreement could always terminate the agreement by mutual agreement. This termination agreement is referred to as mutual rescission agreement in practice and in jurisdictional decisions. However, in case the labour agreement is terminated through the mutual agreement of the parties thereby signing mutual rescission agreement, the employee will not be able to benefit from the job security provisions. It is in favour of the employer as a rule due to this attribute[7].

There are two conditions sought for the validity of the mutual rescission agreement both in discipline and according to the jurisdictional decisions in practice. These are informing the employee about the consequences of the mutual rescission and such termination of the labour agreement would be reasonably in favour of the employee[8].

The employer should have exercised their right to make mutual rescission agreement in compliance with the principles of honesty. While evaluating this, whether the employer behaved diligently in compliance with their liability to protect-take care of the employee, whether they sufficiently illuminated the employee, whether they gave sufficient information, and whether they misled the employee should be taken into consideration[9].

  • RESULT

Mutual rescission agreement is the most attention grabbing one among the mutual rescission conditions which refers to death, expiration of the term of the agreement and the parties agreement, which are the conditions ending the labour agreement other than termination. In such an agreement, the employee (wage earner) is more likely to be the victim. This is because such an agreement does not normally involve the employer’s termination, thus the employee will not be entitled to receiving severance and notice pay, will not be entitled to benefiting from the provisions of job security, and will not be entitled to unemployment compensation either. In this regard, in our opinion, while evaluating the validity of the mutual rescission agreement, the principle of construing in favour of the employee shall be exercised in the hesitant conditions in the interests balance and whether the employer is well intentioned or not should be evaluated.

WORKS CITED

Labour Law numbered 4857

Turkish Code of Obligations numbered 6098

Ercan Akyiğit, İş Hukuku, Seçkin Yayıncılık, 10th Edition, April 2014

Sarper Süzek, İş Hukuku, Beta Yayınları, Istanbul 2013

Cevdet İlhan Günay, “İkale Sözleşmesi”, Çimento İşveren Dergisi, September 2009

Murat Demircioğlu, Yargıtay Kararları Işığında Sorularla 4857 Sayılı İş Yasası, Güncellenmiş 3rd Edition, Beta Yayıncılık

Hasan Nüvit Gerek, “İş Sözleşmesinin İkale Sözleşmesi İle Sona Ermesi”, Çalışma ve Toplum, Issue: 31, 2011/4

[1] Published in the Official Gazette dated 10.06.2003 and numbered 25134.

[2] Published in the Official Gazette dated 04.02.2011 and numbered 27836.

[3] Ercan Akyiğit, İş Hukuku, Seçkin Yayıncılık, 10th Edition, April 2014, p.196

[4] Sarper Süzek, İş Hukuku, Beta Yayınları, Istanbul 2013, p. 514

[5] Cevdet İlhan Günay, “İkale Sözleşmesi”, Çimento İşveren Dergisi, September 2009, p.6

[6]Yargıtay 9. HD.,16.03.2009 T., 2008/21649 E., 2009/6967 K.

[7] Süzek, s. 511

[8] Murat Demircioğlu, Yargıtay Kararları Işığında Sorularla 4857 Sayılı İş Yasası, Güncellenmiş 3. Baskı, Beta Yayıncılık, p.117

[9] Hasan Nüvit Gerek, “İş Sözleşmesinin İkale Sözleşmesi İle Sona Ermesi”, Çalışma ve Toplum, Issue: 31, 2011/4, p. 48

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