Immediate Termination of the Employment Contract by the Employer Pursuant to Article 25/II(ı) of the Labor Law Due to the Employee Endangering Occupational Safety or Causing Damage to Workplace Property

Introduction

Pursuant to Article 25, paragraph II, subparagraph (ı) of the Turkish Labor Law No. 4857, the employer is entitled to terminate the employment contract immediately and for just cause if the employee, through their own will or negligence, endangers occupational safety or causes damage or loss to machinery, equipment, or other items that are either the property of the workplace or under their custody, to an extent that cannot be compensated by the equivalent of thirty days’ wages.

This provision addresses two distinct but related grounds for immediate termination: (1) endangering workplace safety due to the employee’s intentional conduct (wilful misconduct) or negligence, and (2) causing damage or loss—whether to the employer’s property or to items under the employee’s custody—to a degree exceeding thirty days’ wages. In either case, the employee’s failure to fulfill their duty of care entitles the employer to terminate the employment contract immediately and justifiably, regardless of whether the contract is for a definite or indefinite term.

1. The Employee Endangering Occupational Safety Due to Their Own Will or Negligence

1.1. The Employee’s Duty of Care Under the Labor Law and the Code of Obligations

In the interpretation of the right of termination under Article 25, paragraph II, subparagraph (ı) of the Labor Law No. 4857, which may be considered within this scope, it is primarily necessary to determine the extent of the employee’s duty of care towards the employer. As stipulated under Article 400 of the Code of Obligations No. 6098:

“The employee shall be liable for all types of damages caused to the employer due to their fault. In determining this liability, whether the work is dangerous, whether it requires expertise and training, as well as the abilities and qualifications of the employee known to or that should be known by the employer shall be taken into account.”

In line with the duty of care, which may vary depending on different job descriptions, sectors, and areas of expertise, and which can differ based on the nature of the employment relationship and the specific case, the employee’s duty of care must be assessed in light of the level of knowledge, experience, and know-how they are expected to possess according to their current job description.

For the employer’s right to immediate termination to be valid under Article 25, paragraph II, subparagraph (ı) of the Labor Law No. 4857, the employer must not compel the employee to perform tasks that fall outside their personal knowledge and qualifications, nor should such performance be expected. If the employee undertakes such tasks as a result of pressure from the employer, it cannot be said that the employee has failed to fulfill their duty of care, and thus, any termination based on such grounds shall be deemed unjust.

Likewise, in cases where the majority of the negligence or intent lies with the employer, or if the damage to the property arises due to the employee’s inexperience or a force majeure event, such terminations cannot be considered to be based on just cause.

1.2. The Employee’s Duty of Care Under Occupational Health and Safety Legislation

In addition to the employee’s defined duties and duty of care within their area of expertise, all employees in the workplace are required to fulfill their work obligations in compliance with the occupational health and safety measures, directives, and instructions set by the employer. In this respect, Article 19 of the Occupational Health and Safety Law No. 6331, as well as EU framework directives and ILO Convention No. 155, establish the obligations of employees.

If the employee fails to comply with the occupational health and safety precautions notified or provided through training by the employer, this shall constitute a breach of the duty to diligently perform their work. If such noncompliance results in damage to the employer, the employee shall be held liable under Article 400 of the Turkish Code of Obligations. Moreover, if the employee endangers occupational safety or causes damage to workplace property, it is evident that the employer shall have the right to terminate the employment contract for just cause pursuant to Article 25/II(ı) of the Labor Law.

According to the established case law of the Court of Cassation, it is not necessary for a danger to have actually materialized as a result of the employee’s noncompliance with safety precautions; the mere endangerment of workplace safety is deemed sufficient for a justified termination. For instance, the Court of Cassation has ruled that smoking in a hazardous area where smoking is prohibited constitutes endangerment of occupational safety and provides just cause for termination. Similarly, although each case must be evaluated on its specific facts and based on the nature of the job and workplace, the Court has accepted that a security guard sleeping while on duty constitutes conduct that endangers workplace safety and thus is grounds for justified termination. Another noteworthy point is that if the employee’s breach of occupational safety obligations also poses a threat to their own health and safety, this too may give rise to justified termination.

In its decision dated 29.06.2015 (22nd Civil Chamber, Case No. 2014/13148, Decision No. 2015/22249), the Court held that the statements of the HR manager and the witness who recorded the incident, both of whom clearly saw the employee smoking, along with their proximity during the event and their ability to distinguish between a coffee stirrer and a cigarette, were sufficient to establish that the employee endangered safety by smoking in a fire-risk area. The Court concluded that the termination was based on just cause and ruled that the employee’s claims for severance and notice pay should have been rejected.

In another decision dated 02.11.2004 (9th Civil Chamber, Case No. 2004/1834, Decision No. 2004/24692), the Court found that although a designated smoking area existed within the factory premises, the employee had smoked in a fire-hazardous area outside the permitted section. This act was deemed to endanger workplace safety and thus justified termination.

As also reflected in these precedents, in addition to evaluating whether the employee’s conduct endangered workplace safety, the court also considers whether the employer took necessary safety measures, provided designated smoking areas, and properly notified employees about the boundaries and usage of those areas. In labor law, the assessment of justified termination due to misconduct is not solely based on the employee’s behavior, but also includes whether the employer fulfilled legal obligations such as providing mandatory training, supplying necessary equipment, and implementing workplace safety protocols.

In another case (7th Civil Chamber, Case No. 2015/4672, Decision No. 2015/7580, dated 28.04.2015), the Court held that a driver of an LPG tanker speaking on the phone while driving endangered occupational safety. The employee, who worked in a highly flammable paper factory, had previously signed undertakings in 2003 and 2005 agreeing not to smoke at the workplace. Given the employer’s prior warnings and the nature of the work environment, the employee’s act constituted just cause for termination under Article 25/II(ı).

Further decisions from the Court of Cassation include:

  • An employee playing with fire or smoking in a paper factory where such acts were prohibited;
  • A security guard leaving their post (9th Civil Chamber, 21.01.2009, Case No. 2007/34191, Decision No. 2009/554);
  • A guard found absent from duty during an inspection at 5:00 AM, who admitted the absence in writing (9th Civil Chamber, 22.07.2004).

These behaviors were deemed to endanger the safety of the employee or others, thereby constituting just cause for termination by the employer.

According to legal doctrine, it is sufficient that the employee’s behavior creates the potential to endanger safety, even if no actual harm occurs (Akyiğit, 2016: 312). For example, failure to comply with basic safety protocols—such as wearing gloves or helmets, attending OHS committee meetings, or participating in safety trainings—may be considered an endangerment of safety. On the other hand, the Court has also ruled that isolated conduct—such as an employee not on active safety duty (e.g., loading materials, cleaning, or serving tea) falling asleep once during work hours due to illness—does not necessarily pose a safety threat justifying termination (Koç, 2011: 167).

In its decision dated 01.03.1989 (Court of Cassation General Assembly, Case No. 1988/9-908, Decision No. 1989/109), the Court emphasized that whether the employee endangered safety must be evaluated based on the specific facts of the case. In that instance, the claim that the employee sleeping at the workplace constituted a danger was not supported with sufficient inquiry or reasoning. As such, the Court overturned the previous ruling, stating that mere sleep without a clear link to danger was insufficient for justified termination.

Therefore, it is clear that distinguishing between justified and valid reasons for termination is not always straightforward. At this point, the nature of the job becomes a determining factor. For instance, a security guard sleeping on duty poses a greater risk than an office worker in a non-critical role doing the same. Thus, the employee’s conduct must be evaluated in context, with reference to the specific job function and the impact of the behavior on the employment relationship (Koç, 2011: 168; Yeşilbaş Helvacılar, 2018: 68).

2. Causing Damage to Machinery, Equipment, or Other Property Belonging to or in the Custody of the Workplace to an Extent Uncompensated by Thirty Days’ Wages

The second situation regulated under Article 25, paragraph II, subparagraph (ı) of Labor Law No. 4857, which entitles the employer to immediate termination, arises when the employee, through willful misconduct or negligence, causes damage or loss to machinery, equipment, or other items that either belong to the workplace or are under the employee’s custody, to an extent that cannot be compensated by the equivalent of thirty days’ wages.

To exercise the right of termination under this provision, the employer must demonstrate that the damage caused by the employee exceeds the value of thirty days’ wages. Notably, such damage may not only involve malfunction, deficiency, or breakage, but may also include the total loss of the item.

According to a decision of the Court of Cassation General Assembly (YHGK, 17.06.2009, E. 2009/9-210, K. 2009/274), for the employer to exercise this right of termination without notice, it must be shown that a loss or damage occurred and that it was a result of the employee’s fault—whether intentional (willful misconduct) or negligent. Moreover, the resulting damage must be of a magnitude that cannot be compensated by the employee’s thirty-day wage. In cases where there is a dispute about the value of the damage, the matter should be resolved through expert opinion, taking into account the nature of the job. Witness statements alone are not sufficient; the exact value of the damage must be determined, along with the proportion of the employee’s fault.

It is clear from this ruling that the damaged or lost items need not be owned by the employer; it suffices that they are under the employer’s custody or responsibility. However, the property in question must relate to the workplace. Damage to personal property unrelated to the workplace does not constitute just cause under this provision (Akyiğit, 2016: 312).

As the article refers to “other items and materials,” the scope is not limited to machinery or equipment. It is also irrelevant whether the item was located inside or outside the workplace; what matters is that it was under the ownership or custody of the employer and was damaged by the employee (Narmanlıoğlu, 2014: 462; Tunçomağ & Centel, 2015: 227).

For the employer to terminate the employment contract, the endangerment of safety or damage to property must result from the employee’s fault—either willful or negligent (Koç, 2011: 170). According to Article 400 of the Turkish Code of Obligations, “The employee is liable for any damage caused to the employer due to fault. In determining this liability, consideration shall be given to the hazardous nature of the work, whether it requires expertise and training, and the abilities and qualifications of the employee known to or expected by the employer.” If the employee is not at fault or if the employer contributed to the damage, termination under this provision would not be justified. For example, in a decision dated 06.10.1992 (9th Civil Chamber, E. 1992/3068, K. 1992/10904), the Court ruled that termination without compensation would not be appropriate if the employee was not competent for the task assigned.

Court decisions have also affirmed that when there is a dispute about the value of the damage, it must be resolved through expert review and not through witness testimony. The exact amount of compensation must be determined, and the proportion of fault must be taken into account.

In a ruling dated 23.09.2008 (9th Civil Chamber, E. 2007/27255, K. 2008/24526), the Court held that if the employee is found to be faultless, the employer does not have the right to terminate for just cause. If the employee’s fault is determined in percentage terms, the damage amount must be reduced proportionately before assessing whether it exceeds thirty days’ wages. If the employer bears significant responsibility for the incident, the termination cannot be deemed justified. In one case, where the employee was only slightly at fault, the Court considered the act as a valid reason rather than a just cause for termination.

Although the law does not explicitly define what constitutes “thirty days’ wages,” the Court of Cassation has adopted the principle of interpreting the law in favor of the employee and ruled that gross salary should be used in the calculation. Also, “thirty days” should not be interpreted as a calendar month. According to the 23.09.2008 ruling (E. 2007/27255, K. 2008/24526), the daily wage at the time of termination must be multiplied by thirty.

If the damage occurred in the course of a collaborative task, each employee shall be liable based on their degree of fault. Where different employees are involved in various stages of production, each shall be held responsible for the damage corresponding to their own role and conduct (Narmanlıoğlu, 2014: 379). In one case, the Court ruled that a quality control officer who allowed defective goods to pass inspection, leading to a financial loss, was indeed at fault.

The Court has also found just cause in instances such as:

  • An employee washing machinery with water, contrary to its technical requirements, resulting in damage exceeding thirty days’ wages (9th Civil Chamber, 07.03.2007, E. 2006/21225, K. 2007/6069);
  • Faulty goods being included in a shipment under the employee’s instruction, leading to a return and financial loss exceeding ten days’ wages (now thirty days) (9th Civil Chamber, 10.05.2005, E. 2004/21978, K. 2005/16127);
  • An employee causing a traffic accident outside working hours while driving the employer’s vehicle under the influence of alcohol, leading to damage exceeding thirty days’ wages (9th Civil Chamber, 19.09.2005, E. 2005/29067, K. 2005/30406) (Geniş, 2013: 95).

In addition to exercising the right of termination, the employer may also claim compensation for damages under Article 400 of the Turkish Code of Obligations. This liability arises from contractual breach, and the statute of limitations for such claims is ten years (Savaş, 2012: 131). According to the Court, even if the employee has paid or is willing to pay the damages, or if the employer did not demand payment, the employer’s right to terminate remains unaffected (9th Civil Chamber, 23.09.2008, E. 2008/27255, K. 2008/24256).

Finally, the Court has ruled that compensation paid by an insurance company or a third party does not absolve the employee of liability for their misconduct (9th Civil Chamber, 10.07.2006, E. 2006/16499, K. 2006/20608).

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