NEWSLETTER-2019-metin

306 NEWSLETTER 2019 to health reasons is in violation of the purpose of the Labor Act, the principle of equity, and the principle of interpretation in favor of the employee. According to the dissenting opinion, in the case of termination due to health reasons, where the legislator declares that termination within the notification period to be invalid, it would not be fair to terminate the employment contract without obtaining the defense of the employee who is likely to recover after the end of the waiting period. As well, it is not possible to know whether the continuation of the employment contract has become insufferable without obtaining a defense. The employee may be recovered and ready to perform even if the waiting period has been exceeded. Furthermore, according to the dissenting vote, the interpretation made by the General Assembly is against the letter and system of the law. Article 19 that regulates the requirement to obtain a defense, explicitly exempted only the right of the employer to terminate the contract under Article 25/II. Thus, in the case of absenteeism due to a health condition that is associated with employee’s performance, the defense of the employee must be obtained unless the conditions stipulated under Article 19/II are not present. Lastly, the dissenting opinion argues that the statement of “ unless the employer cannot reasonably be expected to provide this opportu- nity” in Convention numbered 158 was excluded from the Labor act on purpose, as the requirement to obtain the defense of the employee in terminations due to health conditions, is the actual will of the legislator. Conclusion In Decisions numbered 2017/9 E. and 2018/10 K., the General Assembly reached the conclusions that if the employment contracts are terminated for just cause due to health conditions, the employers are not required to obtain the employees’ defense. Thus, the judgments regarding this issue are unified, and differences in the doctrine and in practice are resolved.