NEWSLETTER-2020-metin

338 NEWSLETTER 2020 For the purposes explained, above, the General Assembly decided that the penalty clause aims to guarantee that the contract will not be terminated without just cause for the anticipated period and remains valid, limited to the anticipated term, even if the fixed-term employ- ment contract becomes an indefinite-term contract due to the lack of objective conditions. The Dissenting Opinions Two dissenting opinions were drafted in opposition to the Gen- eral Assembly’s decision. In the first one, the following grounds were stated: Pursuant to Article 11 of the Labor Law, since it is not possible to state any anticipated term in indefinite-term employment contracts, even the discussion of the validity of the penalty clause that is subject to a term is against the law. The purpose of Article 11 of the Labor Law is to protect the employee; however, in the Decision, no specific assessment regarding the penalty clause finds that employee benefits have been made, which may result in consequences against the em- ployee, i.e. the employee may have to pay the penalty according to the Decision. It is possible to establish a minimum-term contract in order to protect the common interests of the parties regarding implementa- tion of a condition anticipating the necessity to work for a given period of time and settlement of a penalty clause regarding the termination prior to the anticipated term. This also needs to be done through the mutual consent of the parties. However, in cases when the condition is invalid, conversion of the contracts considered to be for an indefinite- term pursuant to the first sentence of Article 11 of the Labor Law to fixed-term contracts will be done, as the judicial ruling is not in ac- cordance with the law, and is considered to be theory. Finally, although clearly not stated by the parties, unless a contract is deemed to be minimum term, and the condition of period is explicitly considered to be valid only in terms of the penalty clause, different opinions and practices may emerge in terms of job security, notice pay, residual period wages and, in some cases, even concerning the existence of severance pay rights. It has been expressed briefly in the other dissenting-opinions that the opinions of both the 9th Chamber and 22nd Chamber are wrong. The 9th Chamber is of the opinion that the penalty clause attached to