İlayda Sezer (*)
1. Introduction and Scope
The issue of absenteeism in the workplace and its consequences raises many questions for both employees and employers. In this article, we will focus on the employer’s right to terminate the employment contract due to absenteeism for valid reasons (**), the situations that do or do not constitute absenteeism, and key points for both employers and employees regarding this type of termination.
2. Right to Terminate Employment Contract for Valid Reasons
2.1. Right to Terminate for Valid Reasons
An employment contract, in accordance with Article 8 of the Labor Law, is a contract in which one party (the employee) agrees to perform work under subordination, and the other party (the employer) agrees to pay a wage. The employment contract may end or be terminated by either the employee or the employer for various reasons. The termination of an employment contract can be categorized as either termination through dismissal or termination for reasons other than dismissal. Grounds for termination also include the right of both the employer and employee to terminate the employment contract for valid reasons.
The right to terminate for valid reasons is a right that allows the party, for whom it is no longer expected to continue the employment relationship due to the principles of good faith, to immediately terminate the contract, whether it is a fixed-term or indefinite-term contract. The concept of termination for valid reasons is also referred to as “termination without notice” and “immediate termination.” This is because in this type of termination, there is no need to comply with any notification period or pay for such a period.
2.2. Termination by the Employer for Valid Reasons
The situations in which the employer can terminate the employment contract for valid reasons are listed in Article 25 of the Labor Law, titled “Employer’s Right to Immediate Termination for Valid Reasons.” Whether the employment contract is fixed-term or indefinite, if the circumstances listed in the article occur, the employer can terminate the contract before the end of the contract term or without waiting for the notice period. The termination must always be based on the reasons listed as valid reasons in the law. Changing the reason for termination afterward is not possible (Court of Appeals, 9th Civil Chamber, 08.04.2021, 2020/3910, 2021/7862).
3. Termination for Valid Reasons Due to Absenteeism
3.1. Definition of Termination for Absenteeism
The relevant part of Article 25 of the Labor Law concerning the immediate termination of an employment contract by the employer due to absenteeism is as follows:
Employer’s Right to Immediate Termination for Valid Reasons Article 25 – Whether the duration is fixed or not, the employer may terminate the employment contract before the expiration of the contract period or without waiting for the notice period in the following cases: II- Situations Contrary to Morality and Good Faith Principles: (g) If the employee does not attend work for two consecutive business days, or for two days following any holiday in one month, or for a total of three days in one month without obtaining permission from the employer or without a valid reason.
Absenteeism is defined in the Law as “if the employee does not attend work for two consecutive business days, or for two days following any holiday in one month, or for a total of three days in one month without obtaining permission from the employer or without a valid reason.” In such cases, the employer is granted the right to immediately terminate the employment contract for valid reasons.
3.2. Conditions for Termination Due to Absenteeism
This article sets out the following conditions for termination due to absenteeism:
1. The absenteeism must occur in a specific manner,
2. The absenteeism must continue for a certain period.
According to these two conditions, the absenteeism must occur without permission from the employer and without a valid reason for the employer to terminate the employment contract for valid reasons.
Even if the employee’s absenteeism is based on a valid reason, as a requirement of the good faith principle, the employee must inform the employer. If the employee fails to fulfill this notification obligation, it may give the employer grounds for valid termination. However, if the situation is such that it is unreasonable to expect the employee to fulfill this obligation due to the principles of good faith, it should be accepted that no valid reason for termination exists for the employer.
• For an employee to be considered to have been absent for a certain period, the employee must not have worked at all on the specified business days. Adding up hours of absenteeism to reach a certain number of days does not give the employer the right to terminate the contract for valid reasons (Court of Appeals, 9th Civil Chamber, 09.12.2019, 2016/9899, 2019/21877).
• “Absenteeism for a certain period” means two consecutive business days, two times the day after any holiday in one month, or a total of three business days in one month. Regarding this condition, the Court of Appeals 22nd Civil Chamber, in its decision 2017/21350 E., 2019/7432 K., dated 03.04.2019, stated: “A business day should be understood as a day on which the employee is required to work. If there is a rule in the collective or individual employment contract that work will be performed on general public holidays, failure to work on those days will also give the employer the right to terminate the contract for valid reasons.”
3.3. Does a False Report Count as a Justification for Absenteeism?
• If the employee’s absenteeism is based on a health report or another valid reason, it cannot be considered unauthorized or unjustified absenteeism. However, if the health report is falsified, it must be accepted that the employee was absent without justification, and no valid excuse can be created through a false report. In such a case, the employee’s behavior can even be considered as conduct “inconsistent with honesty and loyalty” under Article 25/2-e of the Labor Law.
• The Supreme Court of Turkey, 9th Civil Chamber’s decision dated 09.12.2019 with case numbers 2016/9899 E., 2019/21877 K. states that a false report cannot be considered as an unexcused absence: “In the present case, it is understood that the plaintiff did not come to work on 04.04.2015, 06.04.2015, and 07.04.2015, and although the plaintiff provided an excuse for 07.04.2015, no excuse was provided for the other days, resulting in the termination of the employment contract due to absenteeism. The file includes absenteeism records for these dates, as well as a medical report obtained from a health center for 07.04.2015. In the plaintiff’s defense dated 08.04.2015 regarding the absenteeism, the plaintiff explained that permission was requested but was told by the employer to ‘get a report, we will not give permission,’ and therefore, the plaintiff did not come to work. In the lawsuit petition, it was stated that the plaintiff did not come to work on 07.04.2015 due to illness, and the dismissal was unjustified. Additionally, social media posts in the file show that on 04.04.2015, the plaintiff attended a friend’s wedding, and in a conversation with a friend, it was remarked, ‘They didn’t give you permission, but you don’t need it,’ to which the plaintiff responded, ‘I took care of that,’ followed by the question, ‘Did your doctor uncle take care of it?’ The plaintiff replied, ‘No, I have an uncle, a prosecutor in Ankara.’ These social media conversations and the plaintiff’s defense to the employer led to the conclusion that the report dated 07.04.2015 was not genuine and could not be considered valid. In light of these explanations, the acceptance of severance and notice compensation by the court instead of rejection necessitates reversal.”
• Another important decision regarding a report submitted by an employee is from the Supreme Court of Turkey, 9th Civil Chamber, decision dated 19.11.2018 with case numbers 2018/2306 E., 2018/20864 K: “In this case, based on the information and documents in the file, especially the statement of witness Kadir, it was found that the plaintiff requested three days of leave from the defendant employer before the Ramadan holiday. The defendant employer responded that they do not grant leave before the holiday due to workplace policy and rejected the leave request. After the leave request was rejected, the plaintiff responded, ‘If you don’t give me permission, I’ll take care of it myself, I’ll find a way,’ and the next day notified the employer that a medical report had been obtained. The plaintiff submitted a rest report to the defendant workplace, which covered the period including the Ramadan holiday, and then traveled to their hometown. Given the plaintiff’s statement, ‘If you don’t give me permission, I’ll take care of it myself, I’ll find a way,’ followed by submitting a rest report and traveling to their hometown, it is reasonable to consider that this raised doubts about the validity of the report. Due to the plaintiff’s behavior, the trust relationship between the plaintiff and the defendant was damaged, and while the termination may not be justified, it was based on a valid reason. Therefore, the dismissal of the lawsuit was necessary, and the court’s acceptance based on written justification is erroneous.”
4. Points of Importance For the Employee
The current reviews and evaluations regarding the termination of an employment contract by the employer for justified reasons due to absenteeism are generally conducted within the framework of points of importance to the employer. However, there are also important considerations for employees whose employment contracts have been or may be terminated due to absenteeism, in order to avoid losing their rights.
If we approach these points in a question-and-answer format:
• Does an Employee Who Performs an Active Termination of Employment Still Commit Absenteeism?
An employee leaving work without declaring their intention or failing to continue working can be considered within this scope. However, absenteeism and terminating employment by active behavior should be distinguished from one another.
If an employee actively terminates their employment for a justified reason, the employer’s preparation of absenteeism records and terminating the employment contract on the grounds of absenteeism may not be considered a justified termination under certain conditions.
In this context, the Supreme Court of Turkey, 22nd Civil Chamber’s decision dated 13.12.2018 with case numbers 208/10285 E., 2018/23184 K., concerning active termination states: “In this case, the plaintiff claimed to have terminated the employment contract for a justified reason due to health reasons and unpaid overtime after an occupational accident on 10/11/2012. The defendant employer argued that the contract was terminated due to absenteeism. Upon reviewing the information and documents, it was found that the plaintiff did not return to work after the rest report ended following the occupational accident and actively terminated the contract. The employer’s subsequent preparation of an absenteeism record and termination based on absenteeism after the plaintiff’s active termination has no significance. The plaintiff’s attorney explained the reason for the active termination in the lawsuit petition as follows: ‘..Due to the lack of occupational safety at the workplace and the accident caused by it, as well as the non-payment of overtime for a long time, the plaintiff exercised the right to terminate the contract without notice and did not respond to the employer’s notice to return to work, thereby lawfully terminating the contract.’ It was understood that unpaid labor claims existed at the time of the termination, and the acceptance of severance compensation was necessary due to the justified termination.”
• To Whom Should the Employee Notify Their Absence, and Who Bears the Burden of Proof?
The employee must notify the authorized person responsible for granting leave at the workplace. Simply notifying that they will not come to work or informing unauthorized persons is not considered sufficient to regard the employee as on leave. Additionally, the employee bears the burden of proving that permission was granted. However, the burden of proving absenteeism lies with the employer.
• Can an Employee Be Considered Absent Even If They Do Not Exceed the Absenteeism Period Stipulated by Law?
Even if the employee’s absenteeism does not reach the prescribed period, it can be considered a “habit” if it occurs frequently within a certain timeframe. For example, if the employee takes one or two days of unexcused absence monthly over an extended period, the employment contract may be terminated not due to absenteeism but for justified reasons under Article 25/2-h of the Labor Law, for behavior that is incompatible with trust and loyalty.
• If the Employee Comes to the Workplace but Does Not Work, Is This Considered Absenteeism?
An employee who is present at the workplace but does not perform their duties is not considered absent in the context of absenteeism. However, if the employee continues to refuse to perform their duties after being reminded of their responsibilities, this could lead to the termination of the employment contract for justified reasons under Article 25/2-h of the Labor Law. The Supreme Court of Turkey, 9th Civil Chamber, in its decision dated 13.04.2016, case numbers 2015/29562 E., 2016/9279 K., stated: “Absenteeism refers to the employee’s failure to continue working. If an employee is present at the workplace but has not started performing their duties, they cannot be considered absent. However, if the employee insists on not fulfilling their duties despite being reminded, termination under Article 25/2-h of the Labor Law is justified.”
● Would an Employee be Considered as Absent if They Use Their Right Not to Work Due to Non-Payment of Wages?
If an employee chooses to exercise their right not to work due to non-payment of wages, they must notify the employer of this. Furthermore, the employee can only exercise this right until the full payment of their wages. Once paid, the employee is obliged to return to work immediately. Otherwise, the behavior would not be considered exercising the right not to work, but rather as an unauthorized and unexcused absence.
● Can an Employment Contract Be Terminated Due to an Act for Which the Employee Has Already Received a Warning under Legal Grounds for Justified Termination?
Although termination due to absenteeism (Art. 25/2-g of the Labor Law) is a justified reason for termination, the employer is not obliged to terminate the contract and may choose to apply other disciplinary measures instead. But what if the employer has already issued a warning for absenteeism—can the contract still be terminated for the same behavior later?
If an employee has received a warning or similar penalty for an act falling under Article 25/2 of the Labor Law, it is considered that the employer has waived their right to terminate the contract based on that act. In other words, the right to terminate for that specific act cannot be used again. This was addressed in a ruling by the 9th Civil Chamber of the Turkish Supreme Court, decision number 2016/12229 E., 2020/610 K., dated 20.01.2020: “As the claimant was first penalized with a reprimand for a dispute and fight with a coworker on 05.09.2014, the subsequent termination of the employment contract for the same reason is unjustified, and the claimant’s claims for severance and notice compensation should have been accepted, rather than rejected with the stated rationale.”
● What Happens If the Employer Maliciously Claims “Absenteeism” After Dismissing the Employee?
In practice, it is common for employers to verbally dismiss employees by saying things like, “I’m firing you, don’t come to work anymore,” but then later create absenteeism records in the employee’s absence to avoid paying severance and notice compensation. In these cases, although the employer has dismissed the employee without cause, they may proceed to register the employee’s exit with the Social Security Institution as due to absenteeism, using this as a pretext to avoid paying compensation.
Let’s delve deeper into this issue. It can manifest in two ways:
• First, the employer may terminate the employment contract for a reason other than absenteeism, but later act as though the dismissal was due to absenteeism.
• Second, the employer may dismiss the employee by verbally “firing” them without any written notification, and the employer can then create absenteeism records after the fact.
In the first case, if the employee’s contract was terminated for a reason other than absenteeism, and the proper absenteeism termination procedures were not followed, the employee may have the right to file a lawsuit for reinstatement.
In the second case, where the employee is dismissed by being verbally “fired” without any written notification, and the employee does not produce any written evidence regarding the reason for their dismissal, the employer may be able to create absenteeism records after the employee has left. In this scenario, the employee may lose the right to severance and notice compensation, as well as the ability to claim reinstatement. The solution for the employee would be to request a written document from the employer stating the reason for dismissal. If the employer refuses to provide this, the employee should prepare a written document stating the reason for their dismissal and have it signed by themselves and witnesses.
5. Important Points For Employers
We can address the important points for employers in a Q&A format for clarity:
Does Employee Absenteeism Always Allow for Justified Termination?
If the employee’s absenteeism is justified, even if the employee did not take leave or inform the employer, the employment contract cannot be terminated for absenteeism. The Supreme Court’s 22nd Civil Chamber decision, case number 2017/23161 E., 2019/14770 K., dated 02.07.2019, emphasizes this:
“Employee absenteeism does not always give the employer the right to justified termination. If the absenteeism is based on a justified reason, the employer cannot immediately and justifiably terminate the contract. Illness of the employee, death or illness of family members, serving as a witness or expert are reasons that justify absenteeism. Reports from private health institutions should be valued unless proven to be falsified.”
How is the Absenteeism Period that Allows for Termination Calculated?
The “one month” period mentioned in Article 25 of the Labor Law refers to the time between the first day of absenteeism and the same day of the following month. If unjustified and unauthorized absenteeism does not occur within this period, the employee’s contract cannot be terminated for absenteeism. This explanation is found in the Supreme Court’s 22nd Civil Chamber decision, case number 2017/21350 E., 2019/7432 K., dated 03.04.2019:
“The one month mentioned in the article refers not to a calendar month but to a period of one month starting from the first day of absenteeism. If absenteeism begins on a specific day, the one-month period ends on the same day of the following month. If the corresponding day doesn’t exist in the final month, the period ends on the last day of the month. Subsequent absenteeism is evaluated within subsequent monthly periods.”
Can the Employment Contract Be Terminated Due to Absenteeism if the Employee Has Been Granted Leave?
If the employer has granted the employee paid or unpaid leave, the employee’s absence from the workplace during the leave period does not constitute unauthorized absenteeism. However, the employee cannot leave on their own. Since the employer has the right to determine the timing of the leave under “management rights,” the employee’s failure to return to work on the grounds of taking annual leave without the employer’s permission will constitute absenteeism. The Supreme Court’s 9th Civil Chamber decision, case number 2007/21656 E., 2008/18647 K., dated 01.07.2008, states:
“An employee who has been granted paid or unpaid leave by the employer cannot be expected to come to the workplace during the leave period, and thus absenteeism cannot be mentioned. However, determining the timing of annual leave falls under the employer’s management rights, so the employee cannot unilaterally leave. If the employee fails to come to work, claiming to be on annual leave, this will constitute absenteeism unless the employer deems them to be on leave.”
6. Process the Employer Should Follow for Termination in Case of Absenteeism
The process that the employer should follow for justified termination due to absenteeism, based on common practices and Supreme Court precedents, can be summarized as follows:
1. A separate record should be made for each day of absenteeism. This record should be signed by the employer/employer representative and at least two witnesses.
2. A warning should be sent to the employee, requesting them to provide an explanation for whether their absenteeism is based on a justified reason, and the employee’s defense should be requested.
3. If the employee is absent for one day and returns the next day, the employer should ask in writing whether the absenteeism was based on a justified reason, and the employee’s defense should be obtained. If the employee refuses to receive the written notification, a record should be made in the presence of at least two witnesses, stating that the employee refused to acknowledge receipt.
4. If the employee continues to be absent despite the warning, or if they fail to provide a justified reason, the employment contract may be terminated with written notice.
5. In cases of justified termination, the employee is not entitled to severance or notice compensation. However, any wages or other entitlements (such as overtime, weekend, holiday, or leave payments) must be deposited into the employee’s bank account.
In practice, even though employees may be absent, employers often make procedural mistakes during the termination process, resulting in situations where they “lose while they should have won.” In such cases, employees may win claims for severance, notice compensation, or reinstatement due to procedural errors, despite being unjustly absent.
Within this context, if we are to give examples of incorrect practices by employers and explain the correct methods:
Can Termination Be Issued Without Sending a Warning?
In practice, some employers terminate employees who have been absent for two consecutive days without following the notification process we explained above and without asking for their reasons. In such cases, the termination may not be considered justified. Even if the employee was absent and the employer was justified in this matter, if the termination process bypasses the procedure we outlined earlier, employees may have a high chance of success in potential lawsuits. As a result, the court may deem the termination unjust and invalid, and the employee’s claims for severance pay, notice compensation, and reinstatement may be accepted.
Should Termination Be Issued from the First Day of Absenteeism?
A common mistake made by employers is to issue termination from the first day of the employee’s absenteeism. In this case, the records prepared will have dates after the termination date, which means they will not be considered reliable. The records must pertain to days before the official termination date as stated in the termination notice.
Can a Single Record Be Prepared for Multiple Days of Absenteeism?
A separate record must be prepared for each day of absenteeism. If a single record is prepared collectively for all the days of absenteeism, that record will not be considered reliable. Additionally, the records should be corroborated by witnesses.
Can an Employee Who Engaged in Constructive Dismissal Be Terminated Based on Absenteeism?
If the employer terminates the employee’s contract without following the proper procedure or dismisses the employee through constructive dismissal, the employee may still be entitled to severance and notice compensation. Furthermore, if the conditions are met, the employee may win a reinstatement lawsuit. Therefore, the employer must pay careful attention to the procedure during this process.
However, we emphasize that in practice, it can be challenging to distinguish between constructive dismissal and absenteeism. Each case should be evaluated based on its own specific circumstances.
(*) Fourth-year student at Istanbul University Faculty of Law
(**) Although there is no direct definition in the law as “justified termination due to absenteeism,” the justified reason for termination under Article 25/2-g of the Labor Law No. 4857 is used as it is applied in practice.
REFERENCES
• Prof. Dr. Ömer Ekmekçi, Assoc. Prof. Dr. Esra Yiğit, (2023), Individual Labor Law
• Prof. Dr. Sarper Süzek, (2016), Labor Law
• cottgroup.com
• muhasebetr.com
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