NEWSLETTER-2020-metin

339 LABOR LAW an anticipated term is invalid if the fixed-term employment contract is considered to be for an indefinite term due to lack of objective condi- tions; meanwhile, for the same contracts, the 22nd Chamber is of the opinion to the opposite. The dissenting opinion states that such penalty clause should only be applied to the employer. The reasons for such opinion are as follows: This issue should be assessed separately for the employee and the employer. The execution of the penalty clause for both parties is only against the employee, because the amount as stated in the penalty clause may not be considered as an important amount for an economically powerful employer. However, that amount may have significant impact upon a redundant employee. Moreover, a re- duction from the penalty clause decided by the judge does not change such situation. In such a case, claiming the opposite of the employ- ment contract, which is always prepared by the employer, is against the principle of good faith. From the perspective of the employee, considering Article 11 of the Labor Law, which aims to protect the employee, holding responsible the employee from the penalty clause is equitable and fair. The employee could claim his/her rights, as he/ she wishes, according to a fixed-term contract, or to an indefinite-term contract. Therefore, the penalty clause that is attached to a term binds the employer, but not the employee. Conclusion The General Assembly, through its decision numbered 2017/10 E and 2019/1 K, decided by a large majority that the “penalty clause regarding unjust termination prior to the anticipated end date” is valid, limited to the period in question in fixed-term employment contracts, which are accepted as indefinite-term contracts due to the lack of objective conditions. Through this, the differences of opinion in the doctrine and between the different chambers of the Court of Cassation are eliminated.