ERDEM-NEWSLETTER-2018-metin

347 LABOR LAW be evaluated on its own merit and procedure. However, not to obtain the defense statement, itself, shall invalidate the termination and this invalidation shall cause, briefly, reemployment of the employee, with compensation, for the time not worked, to a maximum of 4 months’ salary of the employee in the workplaces where job security provisions are applicable, and payment of bad faith compensation in workplaces where the job security provisions are not applicable. Exceptions The second sentence of Art. 19.2 of the Labor Law regulates the exception of obtaining a defense statement, stating that upon the behavior of the employee that is contrary to ethics and good faith rules (counted in Art. 25.II of the Labor Law), and which grants the employer the right to terminate the employment contract with im- mediate effect, obtaining a defense statement is not required. This regulation is subject to many contradictory Supreme Court decisions. Several decisions find the existence of the situation counted in Art. 25.II sufficient in order not to require a defense statement; whereas, some decisions evaluate the termination reason in detail, and seek a defense statement even if the situation is within the scope of Art. 25.II as the determination whether the reason is valid or just is at the sole discretion of the Courts. In practice, the Courts determine the grounds for termination by evaluating each situation, and decide which are not powerful enough to be used as just cause, but are sufficient to end the employment relationship as valid reasons. Within this scope, as a defense statement is required for the terminations for valid reason, the absence of this statement causes the invalidity of the termination. Moreover, Supreme Court has contradictory decisions regarding absenteeism, as well. Pursuant to the Art. 25.II.g., the absence of the employee, without a valid reason or obtaining permission from his/ her employee; i) two business days, consecutively, ii) the day after a holiday twice within one month, or iii) three business days within one month, are just causes for termination with immediate effect. The strict application of the rule regulated under Art. 19.2 does not seek a defense statement. However, the Supreme Court decided in several of its decisions that a defense statement is obligatory due to the investiga-