NEWSLETTER-2019-metin

305 LABOR LAW is an obligation to obtain the defense of the employee would serve no purpose under the law. • Medical conditions that lead to immediate termination of the employment contract for just cause should not be evaluated as one of the reasons regarding the conduct or performan- ce of the employee as stipulated under Article 19. Medical conditions that lead to immediate termination of the employ- ment contract express the “inability” of the employee, and an evaluation regarding the performance of the employee shall not be in question in that case. • Under Article 7 of the Convention numbered 158 of the Inter- national Labor Organization (“Convention numbered 158”); “ Employment of a worker shall not be terminated for reasons related to the worker’s conduct or performance before he is provided with an opportunity to defend himself against the allegations made, unless the employer cannot reasonably be expected to provide this opportunity. ” As is clear in Con- vention numbered 158, even in cases of termination due to conduct and performance of the employee, the employer is not expected to obtain the defense of the employee in cases where it cannot reasonably be expected. Also, in the preamb- le of Article 19, it states that it could not be expected that the employer obtain the defense of the employee in cases of physiological and physical inability of the employee, which lends itself to Convention numbered 158, as well. In accordance with the reasoning and explanations, above, the General Assembly decided that absenteeism of an employee that ex- ceeds the notification period by six weeks is not related to conduct or performance of the employee, and that Article 19 shall not apply in this case, and ruled, therefore, that there is no need to obtain the defense of the employee prior to termination. Dissenting Vote In the preamble of the dissenting vote, it is argued that not obtain- ing the defense of the employee prior to termination for just cause due