Labor Law No. 4857 stipulates the rights of the employer in cases such as occupational accidents, illness of the employee, and the subsequent obtaining of a medical report. While the subject of occupational accidents will be addressed in another article, cases of employee illness and subsequent medical reports will be discussed in this text. Article 25 of the Labor Law regulates the cases of termination for just cause by the employer. The relevant part for our discussion is sub-clause (I), which reads as follows:
1. What are the Cases of Termination for Just Cause by the Employer Due to Health Reasons?
Article 25 – The employer may terminate the employment contract, whether for a definite or indefinite period, before the end of the term or without waiting for the notice period, in the following cases:
I- Health reasons: a) If the employee contracts a disease or becomes disabled due to their own intent, disorganized lifestyle, or addiction to alcohol, and the resulting absenteeism lasts for more than three consecutive business days or more than five business days in a month. b) If it is determined by the Health Board that the illness contracted by the employee is incurable and that it is objectionable for them to work in the workplace.
In cases other than the reasons listed in sub-clause (a), such as illness, accident, birth, and pregnancy, the employer’s right to terminate the employment contract without notice arises after these situations exceed the notice periods specified in Article 17 by six weeks, based on the employee’s duration of service at the workplace. In cases of birth and pregnancy, this period starts at the end of the period specified in Article 74. However, wages do not accrue for the periods during which the employee cannot go to work because the employment contract is suspended.
2. What are the Consequences Arising from an Illness Contracted Due to the Employee’s Own Fault?
As understood from the text of the article, this provision covers all employment contracts, whether fixed-term or indefinite. Primarily, an employer is not obliged to endure an employee’s negligent lifestyle that affects their work. For this reason, sub-clause 1/a does not “forgive” the situation of contracting a disease or becoming disabled due to intent, disorganized lifestyle, or alcohol addiction, and grants the employer the right to terminate if absenteeism exceeds 3 consecutive business days or 5 business days in a month. Similarly, if the Health Board determines the illness is incurable and work is objectionable, the employer is granted the right to immediate termination for just cause under sub-clause (b).
3. What Will Be the Consequence of the Employee Contracting Other Illnesses?
If an employee contracts an illness through other means—not due to intent, disorganized lifestyle, or addiction—what happens then?. In such cases, the employer’s obligation to endure the situation is at most “notice period + 6 weeks”. Even if the absenteeism is based on a medical report, if it exceeds this limit, the employer has the right to terminate the contract without notice and for just cause. In this case, the termination will be based on both a just cause and a valid reason according to Article 18, paragraph (f) of the Law: “Temporary absenteeism during the waiting period stipulated in sub-clause (b) of the first paragraph of Article 25 due to illness or accident”.
4. Are Wages Paid to the Employee After the Notice Period Has Expired?
According to this, the 6-week period after the notice period has expired will be the “suspension period”. Although the contract has not yet been terminated, the employer may choose not to pay wages during the suspension. The Law grants this right with the sentence: “Wages do not accrue for the periods during which the employee cannot go to work because the employment contract is suspended” (Art. 25/I-b, last sentence). If the temporary absenteeism does not exceed the specified suspension period, a notice of termination by the employer will be considered an invalid termination.
5. Can the Employment Contract Be Terminated Before the Periods Expire?
Furthermore, the inability to terminate the contract via notice during illness does not prevent the parties from terminating the contract for a different just cause that may arise during that period. For instance, if an employee works for a competitor while on medical leave, the employer gains the right to terminate without compensation.
The following point is also noteworthy: “The fact that an employment contract cannot be terminated via notice during illness and that notice periods do not run does not prevent the parties from terminating the contract for a just cause that arises during that period. In other words, during the suspension period, the employment contract can be terminated for a just cause other than the reason for suspension. According to Article 17 of the Labor Law, in terminations made by giving notice, the employment contract still maintains its existence during the notice periods… For instance, as noted in Court of Cassation (Yargıtay) decisions, if an employee works for a different, potentially competing business while on medical leave, the employer will have the right to terminate without compensation“.
Calculation of the Waiting Period: “Regarding the determination of the waiting period, the duration until the date the employee became unable to work due to illness or accident is taken into account for seniority (kıdem); however, the period that must be waited due to illness is not considered. As understood from the phrase ‘similar cases’ in the Law, the situations leading to termination are not listed exhaustively. The Court of Cassation has also evaluated the significant loss of labor capacity and the loss of the ability to perform the work subject to the contract within the scope of this clause”.
Court of Cassation, General Assembly for the Unification of Judgments (E. 2017/9, K. 2018/10): “If the employee’s absenteeism exceeds the notice periods specified in Article 17 of the Law by six weeks, the right to terminate for valid or just cause arises for the employer. In the immediate termination of the employment contract for just cause, the contract does not end automatically; the party in whose favor the just cause has arisen is free to exercise this right or not. Once the employer’s intent to terminate reaches the employee, the contract ends immediately. For terminations based on this reason, the state of absenteeism exceeding the six weeks added to the notice period is sufficient, and no other condition is stipulated in Article 25 for the exercise of this right”.
