Mutual rescission in Turkish Labor Law

It is possible for the parties to terminate the contract of employment freely and by mutual agreement within the scope of the freedom of contract. This termination is called 'mutual rescission'. The provisions of the Turkish Code of Obligations are applied with respect to the establishment, form and legal character of the mutual rescission, which constitutes the termination of the employment contract by the mutual agreement of the employee and the employer. Although the freedom of contract principle which includes the freedom to terminate the contract, constitutes the legal basis of the mutual rescission, unlike the General Law of Obligations, it is necessary to treat the interpretation of the mutual rescission in a manner favorable to the worker and in accordance with the principle of interpretation in favor of the worker. Considering there are no job security provisions in this type of termination, the mutual rescission is not a complete termination. Therefore, some rights of the employee that can be applied in case of termination of the employer are eliminated. It is known that the employers are therefore applying to the mutual rescission in order to disguise their will to terminate and apply the provisions of the employment security. Therefore, it is significant to determine whether there is a will of both parties to terminate employment with mutual rescission. In order to determine the invalidity of such mutual rescissions aiming to circulate the law, some criteria are applied by the doctrine and in particular by the Court of Appeals. In our study, touching upon these criteria, cases in which mutual rescissions are valid; the options, and when they are not valid; the questions regarding the aftermath of the employment contract and the approaches of the Court of Appeals on these issues are discussed.