What is notification compensation?

As it is known, an employment contract is a type of contract that can be established in writing or verbally and imposes obligations on both parties, with one party having the duty to work and the other party having the obligation to pay wages. As in every contract, in an employment contract, the parties are given the opportunity to terminate if the contract rules are not followed. In addition, failure to comply with legal rights and duties also constitutes situations requiring termination of the contract.

In order to understand the subject better, it is necessary to explain what the right of termination and notice pay in the employment contract mean. A decision of the General Assembly of the Supreme Court of Appeals, which includes these evaluations, is as follows:

"Termination notice is a unilateral declaration of will, and this declaration can be used to terminate the contract by giving a period in indefinite-term service contracts, as well as to terminate definite or indefinite-term contracts by the employee or employer without giving a period of time, based on just cause. For this reason, in employment contracts, the termination notice is a unilateral declaration of will that must be directed to the other party, terminating the contract after a certain period of time or immediately. Termination in employment contracts As a rule, the right to make a notification is granted to both parties. Due to its legal nature, the termination notification is a novel right and the acceptance of the other party is not required for it to have results.

Although the form of termination may vary depending on the type of contract and the qualifications of the parties, as a rule, the termination of the employment contract is not subject to formality. Since the employment contract will end with a notice of termination, which is the exercise of a right that creates disruptive innovation, the notice must be made in a specific and clear manner. For this reason, it should be clearly understood from the notification that the party making the termination notification wishes to terminate the contract. For this reason, statements in the form of offers or questions in which the intention to terminate the contract is not clearly understood cannot be considered as notice of termination (Çelik, N.: İş Hukuk Dersleri, 26. b., Istanbul 2013, page 205). On the other hand, employment contracts can be terminated in writing or by action.

Notice compensation is a compensation that must be paid to the other party by the party who terminates an indefinite-term employment contract without a justified reason and without giving due notice. Accordingly, first of all, if the employment contract is terminated without relying on the reasons stated in Articles 24 and 25 of the Labor Law No. 4857 and if the notice notice is not duly granted as specified in Article 17 of the said Law, notice compensation must be paid. Again, despite the justified reason for termination, if the employee or employer does not resort to termination within the limitation period stipulated in Article 26, the obligation to pay notice compensation to the other party arises.

As a rule, the employment contract terminates as a result of notice or, if it is made for a certain period of time, upon the expiration of this period. However, both the Labor Law and the Turkish Code of Obligations also provide the employee and employer with the opportunity to terminate a definite or indefinite employment contract immediately. Therefore, the employer can immediately remove the employee from the workplace; The worker also has the authority to quit the job immediately. On the other hand, there must be a justified reason for the employee or employer to immediately terminate the employment contract. This type of termination is called termination for just cause (immediate termination or indefinite termination) (Tunçomağ, K. / Centel, T.: Labor Law Fundamentals, 5th b., Istanbul 2008, p. 204).

The right to terminate for just cause is a disruptive right that gives the party who cannot be expected to continue the business relationship in accordance with the rules of honesty the right to immediately terminate a fixed or indefinite employment contract. If continuing this relationship becomes unbearable for one of the parties due to a situation arising in the employment contract that creates permanent debt relations, the right to terminate immediately for justified reason arises. Objective good faith, that is, rules of honesty, constitute the measure of whether continuing the contractual relationship has become intolerable.

The right to terminate for just cause is a right that creates disruptive innovations, like temporary termination, and has all the features of these rights. Termination for just cause immediately terminates the employment contract with a unilateral declaration of will, without the need for the acceptance of the other party." K. 2017/384

CONDITIONS OF NOTIFICATION COMPENSATION

The employee or employer is entitled to notice pay only if the contract is an indefinite-term contract. There is no payment of notice compensation in fixed-term contracts. Notice compensation arising as a result of termination is a compensation that must be paid to the other party by the party who terminates an indefinite-term employment contract without a justified reason and without giving due notice. Accordingly, first of all, notice compensation must be paid if the employment contract is terminated without relying on the reasons written in Articles 24 and 25 of the Labor Law No. 4857 and if the notice notice is not duly granted as specified in Article 17 of the Labor Law No. 4857.

From the above explanations, it will be possible to list the conditions of notice compensation as follows:

• The employment contract must be for an indefinite period.
• The employee or employer must have the opportunity to terminate the contract immediately.
• Notice periods must not be complied with when terminating the contract.

WHAT ARE THE NOTICE PERIOD?

The law regulates the notice requirement that must be given to the other party in order to terminate the contract. Notice periods are calculated according to seniority. According to Article 17 of the Labor Law:

Employment contracts;

1. For the employee whose employment has lasted less than six months, two weeks after the notification is made to the other party,
2. For the employee who has worked for six months to one and a half years, four weeks after the notification is made to the other party,
3. For the employee whose job has lasted from one and a half to three years, six weeks after the notification is made to the other party,
4. For workers who have worked for more than three years, eight weeks after notification,

it is deemed terminated.

These periods are minimum and can be increased through contracts.

The party who does not comply with the notification requirement must pay compensation in the amount of the fee for the notification period.

The employer may terminate the employment contract by paying the fee for the notice period in advance.

NOTICE COMPENSATION IN CASE OF WORKER'S RESIGNATION

Termination of the employment contract by the employee without a justified reason and without notice should be considered as resignation. The employment relationship ends when the resignation request reaches the other party. In these cases, notice pay cannot be paid to the worker. It is also a frequently encountered situation that the employee's will in the resignation petition is distorted. If the employer requests the employee to submit a written resignation petition, promising immediate payment of compensation and under similar pressures, and the employee complies with this, there cannot be a real will to resign. In this case, it should be accepted that the termination was made by the employer.

HOW IS NOTICE COMPENSATION CALCULATED?

Notice compensation is calculated based on the periods stated above. Calculation is made based on the last gross wage, which is the basis for calculating notice pay.

There is no ceiling limit on notice pay as there is on severance pay.

Partial Use of the Notice Period

"After the reversal, the Court accepted that the plaintiff worked between 20.03.2012-20.11.2015 and the new service period was determined as 3 years 8 months and 1 day. Accordingly, in accordance with paragraph (d) of Article 17 of Law No. 4857, the notice period is 8 weeks (56 days) and the plaintiff dated 07.10.2015 It is understood that in the termination notice bearing his signature, the plaintiff was informed that the employment contract would end on 20.11.2015, which is the end of the 42-day notice period. Considering the rule of indivisibility of the notice period, it should be taken into consideration that the defendant will be responsible for the entire period if the notice period is not used in full. Accordingly, the notice compensation should be calculated and awarded over 56 days, taking into account the service period determined after the termination. Y9HD. K. 2024/1284