ERDEM-NEWSLETTER-2018-metin

346 NEWSLETTER 2018 Within this context, obtaining a defense statement is the beginning and, in fact, the most important stage of the termination process. The Labor Law does not strictly separate the borders of termination with just cause with immediate effect, which does not oblige the employer to pay severance payment, to grant a notice period (or payment of notice in lieu thereof) and the termination with valid reason, which obliges the employer to pay severance, and to grant a period of notice (or to make a payment of in lieu thereof). Furthermore, in the ordinary course of employment relationships, it is not possible to conclude an objective result in every instance. This imposes an obligation to evaluate each case on its own merits and, within the framework of the governing case-law. Therefore, a transparent and comprehensive termination process allows the employer to make lawful decisions. The information ac- quired through the defense statement will enable the employer to as- sess whether or not the termination of employment contract is neces- sary, and whether the situation is due to a valid reason, or a just cause. In addition, obtaining a defense statement also helps to imple- ment the principle of ultima ratio, as the statement increases the pos- sibility to find a solution, instead of termination of the employment contract of the employee who caused disturbance. The essential issue is whether the employer acts in good faith and offers any alternative to the employee. Legal Regulation Pursuant to Art. 19.2 of the Labor Law, in principle, the employ- ment contract with indefinite duration for an employee cannot be terminated in the absence of his/her defense statement, due to his/ her behavior or efficiency. Lack of performance, not fulfilling his/ her duties, causing material damages, and/or loss of reputation for the employer, and/or breaching the duty of loyalty, are examples of such behavior or inefficiency. However, it should be underlined that obtaining the defense statement from the employee, itself, is insufficient grounds through which to lawfully terminate the employment contract. Each case must