WHAT IS AN EMPLOYMENT CONTRACT FOR A DEFINITE PERIOD? IN WHICH CASES IT IS USED, WHAT ARE THE FORMAL REQUIREMENTS AND LIMITS?

ABSTRACT:

Increased mechanization, new production systems and the labor requirement with the development of technology may bring up different types of work relationships between employees and employers. One of the most important type is the employment contracts for a definite period between employees and employers. Accordingly, employment contracts for a definite period can be made if the contracts meet conditions regulated in Labor Law. Employers may have the opportunity to avoid possible termination and its costs, and employment security provisions by signing an employment contract for a definite period to meet their needs. In this article, we review the definition of employment contracts for a definite period within the framework of Labor Law No. 4857, form requirements, freedom of contract and its limits.

EXPLANATIONS:

The definition of employment contract for a definite period is regulated in Article 11 of Labor Law as follows: “An employment contract for a definite period is one that is concluded between the employer and the employee in 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 materialisation of a certain event. An employment contract for a definite period must not be concluded more than once, except when there is an essential reason which may necessitate repeated (chain) contracts. Otherwise, the employment contract is deemed to have been made for an indefinite period from the very beginning.” As it is clearly regulated that, although the employment relationship in employment contracts is essentially entered for indefinite period, the employment relationship can be entered for definite period in case there are reasons such as the emergence of a particular case and objective conditions, employment contract for definite period can be renewed at most once, with keeping the same terms that make it valid. Otherwise, the employment contract is taken into consideration from the beginning as it is made for an indefinite period. In case of renewal of the employment contract for a definite period more than once, an “essential reason” shall exist.

According to Labor Law, employment contracts for a definite period shall be in written form. Although there is freedom of form requirements for employment contracts for an indefinite period, Labor Law regulates that employment contracts for a definite period shall be in written form. In addition, in accordance with Labor Law Article 12, an employee who works with employment contracts made for a definite period, unless there is a reason justifying discrimination, the employee cannot be treated differently than the precedent employee employed on an employment contract for definite period simply because of the period of the employment contract.

There are some requirements for an employment contract for a definite period to be legally valid. The requirements are: work being for a definite period, the contract is made for completion of a certain work or materialisatıon a certain event, and being in written form. The work is accepted as work for a definite period when how much time is needed for the completion of the work is known by the parties, especially by the employee, or when it may be known, or when it is foreseeable. For instance, in the touristic areas where the intensity of work increases during the summer season, an employment contract for a definite period can be made with the employees who only work during this period in a hotel. Another objective condition regulated in law to make a contract shall be made for the completion of a certain work. For instance, an employment contract for a definite period can be made with employees to complete a building starting from the foundation and to implement all aspects of a project. Another objective condition regulated in law to make a contract is that the work shall be materialized for a certain event. In the workplace, a temporary labor force may be needed due to a phenomenon that is not a part of casual operation or normal daily activity of the company, may arise. For instance, an employment contract for a definite period can be made to provide labor force needed in cases such as sickness, pregnancy, military service, or employees that are on leave for another reason.

Contrary to the conditions regulated in Labor Law, the employment contract is deemed as employment contract for definite period by considering that the contract is no longer valid if there is no objective condition, the time is not clearly stated or not unforeseen, the contract is not made in a written form, the employee is not informed about the employment contract is made for definite period, and there is no job definition in the employee in the contract.

Employment contracts for a definite period may expire in three ways; automatically, upon the parties’ agreement and by termination. The contract shall expire automatically in two ways. The first way is the death of an employee. The contract shall expire automatically after the employee’s death since in employment contracts personality and personal features are important. The second way is the end of the time limit of the contract. As a characteristic of employment contracts, they automatically expire after the end of the time limit of the contract without any other process of the parties. Another reason that expires the employment contract is the parties’ agreement. A contract may be expired upon the parties’ agreement regardless whether the contract is made for a definite or indefinite time. The third reason that expires the contract is the termination. Each party may terminate the contract immediately if there are valid reasons before the end of the time limit agreed in the employment contract for a definite time.

The regulations regarding the notice pay, severance pay and employment security of employment contracts for a definite period are as follows: since employment contracts for a definite period are contracts that the time limit of the work is predetermined, there is no “notice pay/notice period.” In this respect, it is considered invalid even if a contrary condition is placed in the contract. However, severance pay shall be paid to an employee who fulfills the conditions to get severance pay which are fulfilling the one year condition and conditions to entitle severance pay. Employment contracts for a definite period do not entitle workers for employment security or re-employment right. In these contracts, there is no employment security due to the assumption that employer provides employment security during the contract

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