Extraordinary Termination of Employment Contracts: Termination Due to Suspicion

Legal Analysis

The termination of suspicion is not explicitly regulated under Labor Law No. 4857 ("the Law") but has been recognized in practice through decisions of the Supreme Court. Initially, the concept of termination due to suspicion emerged in German law and was first introduced into Turkish law by the 9th Civil Chamber of the Supreme Court in the decision with file number 2007/16878 and decision number 2007/30923.

Definition and Doctrine

The termination of suspicion is defined in Supreme Court precedents as follows: "Termination of suspicion is an exceptional type of termination applicable in cases where the employer cannot prove or is not yet in a position to prove that the employee has committed a crime or has significantly violated the employment contract." (See Supreme Court 22nd Civil Chamber, 17.10.2017, File No. 2017/40841, Decision No. 2017/21915)

In the doctrine, it is argued that a serious, significant, and concrete suspicion justified by facts, which cannot be eliminated, renders the employee's performance of work meaningless in trust-intensive employment relationships. Moreover, strong suspicion by the employer eliminates the suitability of the employee for that job in employment contracts where the employee's personality holds significant importance (Yenisey, Şüphe Feshi, Sicil İş Hukuku D., September 2008, p. 66). In this aspect, termination due to suspicion is not a penalty imposed on the employee but a contractual tool that the employer can use to protect the interests of their business (Baysal, Şüphe Feshi Kavramı ve Şüphe Feshine İlişkin Yargıtay Kararlarının Değerlendirilmesi, Sicil İş Hukuku D., 2016/35, p. 89).

Conditions Required for the Existence of Termination Due to Suspicion

Several conditions must be met for termination due to suspicion to be considered valid:

1. Suspicion: There must be a suspicion that the employee has committed a crime or engaged in behavior contrary to the contract.
2. Strong suspicion: The suspicion must be based on objective facts and incidents.
3. Efforts by the employer: The employer must have demonstrated all efforts reasonably expected of them, yet the suspicion remains unresolved.
4. Employee’s defense: The employee's defense must have been taken.

In a decision by the Supreme Court, it was stated that for termination due to suspicion to be applicable, there must be a strong suspicion based on objective facts and incidents capable of destroying the trust necessary for the continuation of the employment relationship. Furthermore, it is required that, despite the employer demonstrating all reasonable efforts to clarify the situation, the act in question cannot be proven. (See Supreme Court General Assembly, Date: 15.11.2018, File No. 2015/2715, Decision No. 2018/1720)

It is necessary to prove the existence of serious, important, and concrete incidents that justify the suspicion, and what needs to be proven here is not the incident itself but the incident that justifies the suspicion. Indeed, if it is clearly understood that the employee's behavior falls within one of the valid or justified reasons regulated by the Law, then there should be no resort to termination due to suspicion in such a situation. In determining the termination due to suspicion, the employer's subjective assessment alone is insufficient. The presence of suspicion, whether the suspicion seriously undermines the employer's trust in the employee, and finally, whether the employer can continue to employ the employee despite this suspicion, is evaluated by the judge ex officio, considering the specifics of each case.

Case Law Analysis

In the case of termination due to suspicion, a strong suspicion justified by serious, important, and concrete events that cannot be dispelled leads to a breakdown in the trust relationship between the employer and the employee. As a result of a crime or serious breach of duty that cannot be proven to have been committed by the employee, but where there are concrete indications of the employee's involvement, the employer's expectation of the employee's performance becomes meaningless.

On the other hand, termination due to suspicion executed by the employer is accepted as based on a valid reason according to high court decisions. In the decision of the Ankara Regional Court of Justice 7th Civil Chamber, Date: 14.11.2017, File No. 2017/3903, Decision No. 2017/2936, it was stated "The suspicion felt by the employer towards the employee in the employment relationship leads to a deterioration in the trust relationship between them. Due to a suspicion that cannot be tolerated by the employer, the employee's suitability for continuing the employment relationship is eliminated, and the suspicion, which causes the trust relationship to be shaken, emerges as a reason inherent in the employee's personality. A suspicion justified by serious, important, and concrete events eliminates the suitability of the employee for work that cannot be performed without a potential for trust. Thus, termination due to suspicion arises as a type of termination related to the employee's competence. The suspicion must be based on certain objective facts and indications existing at the time of termination. The employer's mere subjective assessment is not sufficient, and the examination must reveal that it is highly probable that the employee committed the suspected act. Termination due to suspicion is among the valid reasons for termination." the termination executed by paying severance and notice compensation is accepted as a termination based on a valid reason. Accordingly, it is possible to state that in the case of termination due to suspicion, the employee will be entitled to severance and notice compensation but will not be entitled to reinstatement.

Conclusion

Termination due to suspicion will come into play when there is a strong suspicion based on objective facts and incidents capable of destroying the trust necessary for the continuation of the employment relationship. Termination due to suspicion provided that the above-mentioned conditions are met, is an extraordinary type of termination that the employer can resort to and is accepted as termination with a valid reason. Therefore, if the conditions mentioned above are met by the employer, the termination due to suspicion option can be utilized, and the employee's contract can be terminated by paying severance and notice compensation.

@Av. Nevra Aydın @Av. Eren Yeniçulha