Application of Employment Contract of Definite Duration

Employment relation between employers and employees may not always be established for an indefinite period. Sometimes employees are enrolled with an employer for a specific project. In such case, employment contracts may be limited to the respective work to be completed. Pursuant to Article numbered 11/1 of Turkish Labour Law numbered 4857 (“Labour Law”), an employment contract for a definite period is one that is concluded between the employer and the employee in a written form, which has a specified term or which is based on the emergence of objective conditions like the completion of a certain work or the materialization of a certain event. One of the biggest risks for employers regarding employment contract of definite term is that the chance of definite termed contracts turning into indefinite employment contracts when employers get into such contracts with employees consecutively without based on proper legal grounds.

The main purpose of the Labour Law is to regulate the working conditions and work-related rights and obligations of employers and employees working under an employment contract. Accordingly, it aims to prevent employers to abuse their powers over their employees. Given that employees have limited severance and notice rights by definite contracts compared to indefinite ones, employers may sometimes happen to abuse employees by signing consecutive definite termed employment contracts in order to prevent their rights to be arisen. Employees, who are often unaware of their rights, accept all kinds of contracts imposed by the employers and, as a result, think that they cannot benefit from their legal rights.

However, Article numbered 11/2 of the Labour Law, various business contracts can be made more than once on top (chain) unless there is a essential reason. However, the contract presented contrary to this in the practice is concluded between employees and employers from time to time.

Since the definition of essential ground/reason has not been clearly stipulated by the Labour Law, the Supreme Court’s decisions are lighting the understand the concept of essential reason. On the other hand, there still has no proper definition of the subject and the Supreme Court has assessed each situation differently based on their own conditions. Examination perception of the Supreme Court may change case to case due to the facts such as the nature of the job and the employee, the field of activity of employer, the time between two contracts are evaluated within the framework of the employee’s victimization and a substantial cause is evaluated before each concrete incident.

As a result, it is not legally possible to execute employment contract of definite period more than once if there are no essential grounds. Accordingly, such contracts are still valid but they will be regarded as indefinite contracts. However, even in the presence of essential reason, the employer’s employment of an employee under a fixed-term employment contract for many years can also be perceived as an abuse of right. For this reason, the validity of definite duration-based employment contracts to be evaluated within the framework of the concepts of balance of power and abuse of right in the light of the Supreme Court decisions.