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Employees failing to attend work without obtaining permission from their employers and without providing any valid excuse, as well as failing to comply with the working hours set by employers, are some of the most common situations encountered in practice. In this regard, employers have certain rights they can exercise against employees who are absent without excuse or who fail to comply with working hours. Detailed explanations on this subject are provided in this article.
A. Employees failing to attend work without obtaining permission from the employer or providing any valid excuse:
According to the Labor Law, if an employee fails to attend work without obtaining permission from the employer or without a justified reason (i) for two consecutive business days, (ii) on the business day following a holiday on two occasions within one month, or (iii) for a total of three business days within one month, the employer may terminate the employee's employment contract immediately for just reason, without any notice period and without paying any compensation. In the case of termination for just reason, it is not mandatory to obtain a defense from the employee before termination.
To minimize the risk of a potential dispute, it is important to investigate whether the absent employee has a valid excuse (e.g., death of a relative, illness of the employee) before terminating the contract in this manner, as the employee may not be in a position to contact the employer. In such a case, if the employee proves that they have a valid excuse, the termination by the employer may be deemed unjust, and any potential dispute may be resolved in favor of the employee. In addition, keeping records of the days the employee did not attend work will strengthen the employer's position.
The right to terminate for just reason must be exercised within 6 business days after the act subject to termination is learned by the person or persons authorized to terminate on behalf of the employer; however, this period shall not commence as long as the employee's unauthorized and unjustified absence continues. The employer's right to terminate for just reason under the Labor Law expires one year after the act subject to termination occurs. However, if the employee derives material benefit from the act in question, the one-year period does not apply.
In the case of termination for just reason due to absence, the termination code should be specified as 48.
B. Employees not adhering to the working hours set by the employer:
One of the most common issues in labor law is employees not adhering to the working hours set by the employer, such as arriving late to work or leaving work early.
In such a situation, employers have various options available, such as issuing a written warning to employees or terminating their employment. However, if the relevant behaviors cause disruptions in the workplace and the operation of the business, the employment contracts of employees benefiting from job security may be terminated based on valid reason.
Under Turkish labor law, the principle that termination must be conducted as last resort is important in termination based on valid reasons; therefore, an employer who wishes to terminate an employee's employment contract based on valid reasons must prove that termination was conducted as last resort in the event of a potential dispute. In this regard, the employer must first record the relevant incident in a written report and then request a written defense from the employee concerned. If the employee cannot provide a reasonable justification in their defense, a written warning may be issued to the employee.
If, following the written warning, the employee continues the same or similar behavior, and the misconduct persists and continues to disrupt the operation of the business, the employee's employment contract may be terminated by the employer for a valid reason. It is a procedural requirement that the employee's written defense be obtained once more before the termination notice is served to the employee.
In termination based on valid reasons, the employee must be paid severance pay, on top of their legal entitlements, and they must also be provided with notice period or payment in lieu of notice. The termination code must be specified as 04.
The employee's failure to comply with working hours does not in itself constitute just reason for termination, like absenteeism. However, if the employee's failure to comply with working hours also constitutes one of the just reasons for termination listed in Article 25 of the Labor Law (e.g., the employee's behavior endangers work safety, insults the employer or another employee), termination for just reason may be considered.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
