1. Brief Information on Valid and Justified Termination Rights
In employment law, there are two types of termination: valid termination and justified termination. Justified termination allows the employer to terminate the employee’s contract without paying severance or notice compensation. On the other hand, valid termination ensures job security for employees with at least six months of seniority in workplaces where 30 or more workers are employed. Justified termination and valid termination are distinct concepts; the former is related to severance and notice compensation, while the latter concerns job security compensation. Not every valid termination is a justified termination, but every justified termination is a valid termination.
In the event of an invalid termination, the employee can file a reinstatement lawsuit and, if successful, is entitled to job security compensation in the amount of up to 4+4 months of their monthly wage. More specifically, if the court rules for reinstatement, the employee will be entitled to compensation equal to four months’ wages. If the employer refuses reinstatement, the court may order additional compensation of up to four more months.
In cases of unjust termination, the employer must pay severance compensation to the employee if they have worked for at least one year, and notice compensation as stipulated by law for employees who have worked for more than two months, depending on the duration of their employment. However, other labor receivables (such as wages, overtime, weekly rest, public holiday payments, bonuses, and annual paid leave) are owed to the employee regardless of whether the termination is justified or valid. These receivables can be claimed through litigation if not paid.
2. An Unvaccinated Employee’s Risk of Contracting and Spreading COVID-19
It can be argued that an unvaccinated employee poses a risk of contracting and spreading COVID-19. However, the Turkish Labor Law lists valid and justified termination cases in a restrictive manner, and the employer must explicitly state the grounds on which the employment contract is terminated if they resort to such termination.
Firstly, considering justified termination, the employer’s right to terminate an employment contract on health grounds is regulated in the Labor Law. Article 25/I of the Law provides:
“a) If the employee contracts an illness or becomes disabled as a result of their intentional actions, disorganized lifestyle, or addiction to alcohol, leading to an absence of more than three consecutive workdays or more than five workdays within one month.
b) If it is determined by a health committee that the illness the employee has contracted is incurable and that their continued presence at the workplace poses a risk.”
For the situation described in subparagraph (a) to apply, the unvaccinated employee must contract COVID-19 and be absent from work for more than three consecutive workdays or more than five workdays in a month. However, considering that vaccinated individuals can also contract COVID-19 and that employees who fall ill generally have the right to take sick leave with a medical report, it seems unlikely that justified termination under subparagraph (a) could be used in this context. Similarly, subparagraph (b) refers to incurable diseases, which does not apply to COVID-19, as cases where COVID-19 is incurable typically result in death. Additionally, individuals with COVID-19 must comply with quarantine rules, meaning that an employee diagnosed with the virus would not be allowed to work and spread the infection at the workplace.
Despite the fact that health reasons are listed among the grounds for justified termination, even in such cases, the employer would still be required to pay severance compensation to an employee who has seniority.
When considering valid termination, Article 18 of the Labor Law requires the employer to have a valid reason based on the employee’s qualifications, behavior, or the operational requirements of the business, workplace, or job in order to avoid liability for job security compensation.
It could be argued that the employee’s behavior, by not being vaccinated, endangers workplace safety by increasing the risk of spreading infectious disease. However, it would be difficult to claim that the employee is the source of infection, as thousands of people contract COVID-19 every day, and it is impossible to determine which employee is the source. Furthermore, in cases of valid termination, the employer would still be required to pay both severance and notice compensation.
3. As a Result
An Employee’s Refusal to Get Vaccinated Does Not Constitute Justified or Valid Grounds for Termination
The refusal of an employee to get vaccinated does not provide sufficient grounds for either justified or valid termination. A review of case law indicates that, due to the novelty of the issue, there are no established rulings on this matter. In terms of employment law doctrine, while there are conflicting opinions, the prevalent view is that refusal to be vaccinated does not constitute valid or justified grounds for termination.
Though there are few rulings related to infectious diseases, the Turkish Court of Cassation has held that in cases of other infectious diseases, termination should be considered a last resort. The Court suggests that before termination, the employer should first grant the employee annual leave, then place the employee on unpaid leave, or, if possible, assign them to work remotely until the infectious disease has passed. As evidenced by these precedents, even in the case of infectious diseases, termination is not immediately justified. Therefore, a dismissal based on the employee’s refusal to be vaccinated would be considered an unjust and invalid termination.