Terminatıon Right Of The Employer Due To Conviction And Detention And Legal Consequences 15 July 2025

Termination of Employment Due to Conviction
 

Although the Labour Law No. 4857 ('Law') does not explicitly regulate absenteeism due to conviction/condemnation, the Court of Cassation accepts that this is a compelling reason.

It is accepted that if it is concretely determined that the absence of the employee is due to the execution of a conviction and the period of absence exceeds the one-week period specified in the Law, the employment contract may be terminated immediately on the grounds of the existence of compelling reasons.
 

In the decision of the 9th Civil Chamber of the Court of Cassation dated 08.04.2021 and numbered 2020/5440-2021/7876; "...the date of the worker's entry into prison is 16.08. 2015 and the total period of conviction is 6 years and 4 months, in accordance with Article 24/III of the Labour Law No. 4857, it should be accepted that a compelling reason has arisen that prevents the employee from working at the workplace for more than one week, in this case, it is understood that the employer has the right to immediate termination, but severance pay should be paid... ", it is accepted that if the employee is convicted and imprisoned due to crimes committed outside the workplace, a compelling reason that prevents the employee from working at the workplace for more than one week has arisen in accordance with Article 25/III of the Labour Law No. 4857. In this case, although the employer has the right of immediate termination, it is stated that the employee should be entitled to severance pay.
 

According to Article 25/III of the Labour Law No. 4857 regulating the termination of the employer for compelling reasons; 'In the event of a compelling reason that prevents the employee from working in the workplace for more than a week', the employee will be entitled to severance pay in the termination to be made, but will not be entitled to notice pay as immediate termination is made. In this case, the Social Security Institution exit code of the personnel must be selected as 27 (Termination by the employer for compelling reasons and due to detention).
 

In case of termination based on compelling reason, the employer must pay half wage for each day in the first one-week period in accordance with Article 40 of the Labour Law.
 

Termination of Employment Contract Due to Detention
 

During the period when the employee cannot perform his/her work due to detention, his/her labour force cannot be utilised. Article 25/IV of the Labour Law stipulates that the employer may terminate the employee for just cause and immediately in the event that 'in the event that the employee is detained or arrested, the absence exceeds the notification period in Article 17'.
 

For the termination with good cause, it does not matter which offence the employee committed, where the offence was committed or whether the employee was convicted as a result.
 

The prerequisite for the termination of the employment contract due to detention is that the absenteeism due to detention exceeds the notice periods specified in Article 17. Notice periods;
 

• 2 weeks for an employee whose employment contract lasts less than 6 months,
• 4 weeks for an employee whose employment contract lasted between 6 months and 1.5 years,
• 6 weeks for an employee whose employment contract lasted between 1.5 years and 3 years,
• It is 8 weeks for the employee whose employment contract has lasted more than 3 years.
   

In cases where the notice periods are increased by the labour contract and collective labour agreements, the right of termination arises by exceeding the increased periods. In order for the termination to be based on just cause, it should be noted that absenteeism as long as the notice period is not sufficient, and that the notice period must be exceeded by at least 1 day.
 

During the specified notification period, since the employment contract is considered to be suspended, the insurance of the employee should not be terminated, and missing day notifications should be made with the appropriate code. The employee who does not fulfil his/her work performance during this period will not be entitled to wages.
 

At this point, it should be noted that the employee is entitled to severance pay in cases where the employment contract is terminated except for the reasons contrary to the rules of morality and goodwill regulated in Article 25/II of the Labour Law No. 4857. Since the right of termination for absenteeism exceeding the notice period due to detention is regulated separately in the Law, the employee whose employment contract is terminated for this reason is entitled to severance pay. However, since this situation is accepted as a reason for immediate termination under the Law, the employee will not be entitled to notice pay. In the content of the decision of the 9th Civil Chamber of the Court of Cassation dated 16.09.2019 and numbered 2017/13378 - 2019/15897; "...Article 40 of the Law No. 4857 does not include a rule on the payment of wages for the time the employee cannot work within the scope of Article 25/IV. In this respect, the employee does not have the right to demand wages for the time he cannot work due to his detention or arrest. However, if the period during which the employee is detained or arrested exceeds the notice period, the employer who terminates the contract in accordance with the aforementioned Article 25/IV of the Law is not obliged to comply with the notice requirement and pay notice pay, but must pay severance pay...".
 

Since the labour contract is suspended during the period of detention and there is no actual work during this period, the periods spent in detention should not be included in the service period based on severance pay.
 

Situation in case of Abscond of the Employee and Its Distinction with Other Justified Reasons for Termination
 

In the event that the employee absconds after committing a crime, termination without compensation is possible based on the reason of absenteeism regulated in Article 25/II-(g) of the Law, since the condition of 'being arrested' is not met. The decision of the 9th Civil Chamber of the Court of Cassation dated 11.05.1998 and numbered 1998/6391 - 1998/8602 accepted that in cases where the employee is not arrested or detained immediately after committing a crime, but on the contrary, escapes, the employment contract may be terminated due to absenteeism and the employee will not be entitled to severance and notice pay.
 

In practice, the termination due to detention under Article 25/IV and termination due to committing an offence at the workplace under Article 25/II-(f) are confused. In Article 25/IV, it is important that the duration of detention exceeds the notice period, not the nature of the offence and where it was committed. In this case, the employee is entitled to severance pay. However, for termination within the scope of subparagraph 25/II-(f) of the Law; an offence that requires imprisonment for more than 7 days and cannot be postponed must have been committed at the workplace, and the employee whose employment contract is terminated for this reason cannot receive severance pay.