Termination of employment contract for employee's fault

The employment contract is an agreement whereby one party (the employee) undertakes to perform work in subordination to the other party (the employer) who undertakes to pay him remuneration. In labour law, the termination of the contract of employment reflects the conflict of interests between the parties, which needs to be balanced. This is possible, particularly with the limitation of employer's right to terminate the employment contract and the control of use of this right. Employer?s right to terminate may be restricted with the regulation and controlled by judicial activity. Stating the cases which enable the employer to terminate the contract, the principles and the procedures are important for judicial control and ensuring the balance of interests.The Turkish legislation of termination of employment is revised in 2003 with the new labour code. The employer must from now to show that it has a valid reason for termination. This valid reason can be related to the aptitude or the behaviour of the worker or founded on the needs for the operation of the company, the establishment or the service. The fault which means the violation of the obligations of the employee, is regulated by article 25/II and article 18 of the labour code. The essential conditions of the termination for fault are the faulty violation of employee?s obligations and the crisis of confidence in employment relationship. The procedure varies according to the gravity of the shown fault as a valid cause for the termination. The distinction between just reason and valid causes is also founded on this level of gravity of the fault. The employee?s fault can constitute at the same time just reason and valid cause. It is important to make the difference between these two types of ground of termination since the procedures and the consequences are not the same ones. However, it is impossible to provide exact criteria for the distinction, which obliges us to treat each concrete case with its characteristics. The common point of these two types of termination is the fault of the employee, the difference results from gravity. Since the departure point is the faulty violation of the obligations, it is necessary to present the obligations of the employee resulting from the employment contract and their contents. The principal obligation of the employee is the completion of the work. The employee must personally carry out his work with prudence and diligence, by respecting the orders of the employer. In labour law, it is the subordination relation which characterizes the employment contract. This bond is characterized by the completion of the work under the employer?s authority. Thus the employee must respect the instructions, the working hours, the work methods given. He must also safeguard the legitimate interests of the employer. The violation of this obligation can also constitute a valid cause or just reason for the termination, according to the conditions of the concrete case. At this point, it is important to specify the limits of the duty of loyalty outside the workplace. Up to what point the employee?s behaviours can be counted for failure with its obligation? Indeed, as a rule, the employee?s behaviour apart from the execution of its work is not constitutive of a fault, causes termination. This behaviour can appear apart from the completion of the work but in the workplace and also apart from the workplace. In any case, it is necessary to make the distinction between the professional life and the private life of the employee. The employee can be proceeded to a termination for a reason drawn from the private life only if the behaviour, taking into account the nature of its functions and of the purpose of the company, has created a disorder characterized within the latter. The employee runs the risk to fail to fulfil his duty of loyalty by adopting a behaviour in contradiction with the interest, the credibility of the company. After the determination of the fault of the employee, it should be shown whether this faulty behaviour justifies the termination or not, because every faulty behaviour does not constitute a valid cause for the termination. The termination for fault requires the crisis of confidence in the employment relationship. In some cases even though the employee is faulty the culpa levissima is not sufficient enough for the justification of the termination. Moreover, some specific circumstances of the concrete case, such as seniority of the employee and his/her past free from sanction, as well as provocative attitude of the employer, fault of another employee or a third person, general condition of the business, work conditions often result in a decrease in the level gravity of the fault. The fact that the employee does not acting a long time against the fault even though he/she is aware of the faulty act and continues the employment relationship shows the confidence relationship has not been affected and continues. The employer must carry out the termination in a reasonable delay. After the determination of the empolyee?s fault, which can be considered as a termination reason, the question whether this faulty act constitutes a just cause or valid reason arises. The fact that it is impossible to provide exact criteria for the distinction obliges to treat each concrete case with its own characteristics. The difference between two types in termination results from gravity of the fault. The valid causes related to the control of the employee mean the faults which are not as serious as just reasons expressed in the Code like ?the contrary cases with morals and the bona fide?. After the provisions concerning the labour protection have entered into force, it has become difficult to distinguish valid reasons arising from the acts of the employee and just causes since no arrangement in accordance with article 25/II of the Code has been made. Article 25/II is the first criterion to distinguish these two grounds for termination because the reasons for termination for just cause are listed in the Code. The fact that the cases listed in this provision and sample cases are in the same direction and the difficulty to distinguish these two grounds for termination makes the distinction difficult and important. With regard to the actual legal regulations, the criticism concerning the old Labour Code no.1475 may be repeated and it can be proposed to remove from the article some reasons listed as just reasons and determine the limits of the others. However it seems more appropriate to provide a general definition of just cause and quit the casuistic method. In this context, we need a more adequate solution that includes all institutions with all their aspects, including severance pay.In the study of termination for misconduct, another important point is the termination procedure. The principal problem in this domain, related to procedure law is the proof. The burden of proof in the existence of a valid cause for termination as defined in the Labour Code is borne by the employer. This rule also applies to the proof of just cause according to the last paragraph of article 25 of Labour Code. An employee, who claims to have been subject to an unjust termination, shall be entitled to file a lawsuit against that termination and in this case the employer must prove the existence of faulty conduct in the trial.The employer must prove the faulty conduct of the employee resulting in the loss of confidence in the employment relationship. He/she must present detailed information about the reason for termination, and thus materialize the case in the court. He/she will also present what was exactly the faulty act of the employee, when it has been realised and how it has affected the labour relationship.The employee's misconducts justifying the termination are those which constitute the breach of the obligation to perform the work, the obligation to respect the instructions of the employer or the duty of loyalty. These behaviors are considered as just cause or valid reason according to the seriousness of the fault. As it is not possible to provide an exact criterion, we must consider each concrete case with regard to its own conditions. And it is the judge who will determine the faulty act and conclude the case since it is not possible to list all faulty acts constituting the grounds for termination.