In summary, from the guiding decision numbered 2015/23423 E., 2018/20089 K. of the 9th Civil Chamber of the Court of Cassation regarding the termination of the employment contract for just cause by the employer in the face of the employee’s absenteeism:
1. The employee being one hour late or being late intermittently during the working day cannot be considered as absenteeism.
2. In order to mention the employee’s absenteeism, it must occur without the employer’s knowledge and permission.
3. The absenteeism report should not be kept collectively, it should be kept separately for each day.
4. The date the employee did not come to work should be stated in the report, and there should be a signature of the witness, the employer and the employer’s representative.
5. The day and time of preparation should be stated in the report.
6. The witnesses must be related to the work. It does not mean anything if a person who does not work at the workplace or is not related to the workplace is a witness. If possible, it would be good to obtain the signatures of the workers the employee works with.
7. In termination due to absenteeism, the absence should be made within the periods specified in the Labor Law. According to Article 25/II-g of the Labor Law, “The employee must not attend work for two consecutive working days or two consecutive working days after a holiday within a month, or three working days in a month, without obtaining permission from the employer or based on a justified reason.” One of the following situations must occur.
8. The concept of one month is valid from the date of the employee’s first absence.
9. The employee’s absence for one day is not considered a justified reason for termination. However, the employee’s defense may be taken.
10. If a defense is requested from the employee, the employee must be given a reasonable period of time. During this period, the employee must write a response stating that they have a valid excuse. If the employee does not respond, it is assumed that the absence is not based on a valid reason.
11. The employer must keep the absenteeism reports and documents related to the reasons for missing days for legal periods, whether or not the employment contract is terminated.
12. If the employee’s employment contract is to be terminated,
1) Was the absence made for the periods specified in the Labor Law?
2) Was an absence report kept?
3) Did the absence occur for a reason other than valid
4) Were these periods shown as absences on the payroll?
5) Was the exit code correctly selected? The questions should be answered.
13. If the worker claims that he has an excuse, he should declare this to the employer. Such as bringing a report in case of illness, etc.
14. Situations such as the worker coming to the workplace and working for one hour and not working for 2 hours are not considered absenteeism, but rather “the worker insisting on not doing the duties he is obliged to do despite being reminded”. The employer should take action accordingly.
15. If the worker takes annual leave by his own decision and the employer does not approve the leave dates he will use, it can be considered as absenteeism for the worker who takes annual leave. If the employer does not allow or permit the worker to use annual leave despite the worker requesting it, the worker can terminate the employment contract for a justified reason. The employer can allow it to be used on another date.
16. The absenteeism reports kept as a result of the worker resigning for a justified reason are of no importance. Because the employee has no more ties to the employer after the termination of the employment contract.
17. The employer cannot give different penalties for the same action. The employee cannot be given a warning, a wage cut and terminate the employment contract. For this reason, if the employee’s employment contract will not be terminated, it should be informed that the employment contract will be terminated in case of repetition of the same action.
18. The limitation periods should be taken into consideration. The employment contract cannot be terminated after 1 year due to the absence of the employee 1 year ago.
19. It is important for the employer to give the permissions to the employee in writing and for the employee to receive them in writing. Because written evidence is more important in a dispute that may occur later.
20. The employee’s absence should be reported as missing day on the payroll with the code 15- Absence. The employee should not be removed from the status of absenteeism and shown as full day on the payroll. For example, if the employee was absent for 2 days, the missing day should be reported with the code 2 days of absence.
21. The employer must make the termination code according to Code 48- 4857/25-II-G. In case of termination with this code, the employee will not be paid severance and notice compensation. However, other rights must be paid. 22. The employee is not entitled to unemployment benefits.
When Article 26 of the Labor Law is interpreted; the right of termination must be exercised within 6 days from the date of learning about the employee’s absenteeism. However, obtaining the employee’s defense (giving a reasonable period for reporting if there is an excuse) should be considered as an investigation and it should be accepted that the 6-day termination period will start after learning about the defense.
COURT OF APPEALS DECISIONS
• Court of Appeals 9th Civil Chamber’s decision numbered 2018/5432 E., 2018/11996 K.:
“The termination authority granted to the employee or the employer based on the situations specified in Articles 24 and 25 pursuant to Article 26 of the Labor Law No. 4857 cannot be exercised after 6 days from the day the other party learns that one of the two parties has engaged in such behavior. In the case in question, the date of the last absence report kept for the plaintiff was 18/12/2013 and the termination was made by the defendant employer on 28/12/2013, after the 6-day period had passed. Although the absenteeism reports were submitted to the file and the reports were verified by the witnesses of the report, it was decided to accept the plaintiff’s severance and notice compensation claims on the grounds that “the termination that was not made on time based on absenteeism is not a justified termination…”, the conclusion reached is erroneous.
As follows; In the case of an employer who is a legal entity, the six-day period starts from the day the authorized authority learns about the termination. An investigation into this matter and the discussion of the incident by the disciplinary board do not start the period. In fact, the plaintiff’s act subject to termination was also investigated, and accordingly, his defense was requested on 26/12/2013, and his defense was received on 27/12/2013 and it was decided to terminate the employment contract on 28/12/2013. In this case, the termination is within the period.
The employer requested that the plaintiff work 3 days in 1 month on 02/12/2013, 07/12/2013 and Since the employer argued that he was absent on 18/12/2013 and that his employment contract was terminated for a just cause, the court should have evaluated this defense and reached a conclusion, but the decision was made with the erroneous assessment that the employment contract was terminated after the limitation period expired, which necessitated reversal.”
• Decision numbered 2015/23423E. and 2018/20089K. of the 9th Civil Chamber of the Court of Cassation;
“The employee’s absence from work does not provide the employer with the opportunity for justified termination in every case. If the absence is based on a just cause, the employer does not have the opportunity to terminate immediately and for a just cause. Situations such as the employee’s illness, the death or illness of a family member or relatives, the employee’s testimony and expert witnessing are the reasons that justify absenteeism. In terms of proving the excuse, reports received from private health institutions should also be taken into consideration unless their falsity is alleged and proven.”
• In the decision numbered 2014/1899 E., 2014/15007 K. of the 9th Civil Chamber of the Court of Cassation;
‘Although the court ruled to reject the case on the grounds that the plaintiff worker did not respond to the employer’s invitation to reinstate the plaintiff after the termination, and that his ultimate goal in filing a reinstatement lawsuit was to receive the wage for the idle period and compensation for not reinstatement, the termination made by the employer was validated by this behavior of the plaintiff;
In the notice sent to the plaintiff on 01.08.2012 by the employer, it was stated that the plaintiff did not come to work without giving an excuse from 29.07.2012 to 31.07.2012. Therefore, if he does not report his excuse and return to work within three days, he is informed that his employment contract will be terminated in accordance with Article 25/2 of the Labor Law, considering the content of the notice, there is no notice of invitation to work again sent by the employer after the termination, it is about the plaintiff’s absence and documenting it, therefore, the court’s reasoning is based on an erroneous assessment, however, in the concrete incident, there was an argument between the plaintiff worker and his superior at the workplace regarding whether he would come to work late or not, the plaintiff claimed that a resignation letter was obtained from him under pressure, however, there is no resignation letter submitted by the defendant in the file and originated from the plaintiff, and the plaintiff’s witness … also stated in his statement that the plaintiff wanted to submit a resignation letter after the argument but this was not accepted by the employer, considering the statement of the plaintiff’s witness, the absenteeism minutes and the scope of the file, it is understood that the plaintiff left the workplace after arguing with his superior at the workplace, there was no termination by the employer as of the date of the lawsuit, therefore, the lawsuit should have been dismissed on this ground, but the lawsuit should have been dismissed with an erroneous assessment ‘even though it was decided to reject it, the correct decision is APPROVED for this reason,’
• In the decision numbered 2016/15113E. and 2019/12771K. of the 22nd Civil Chamber of the Court of Cassation;
“In the concrete case; the defendant party submitted the absenteeism reports regarding the plaintiff’s absence between 07.05.2014-09.05.2014 to the file, the plaintiff party did not justify the termination of the employment contract
