As we mentioned in our previous article on Labor Law, one type of employment contract is a “probationary employment contract”. Trial period; With a provision in the employment contract, it is defined as the period in which the worker sees the working conditions and determines his suitability for the job, and the employer measures the ability of the worker to perform the work he has undertaken.
The purpose of a probationary employment contract is for the parties to know each other during the trial period, therefore the legislator has foreseen the trial period for the benefit of both the employee and the employer. However, in case of abuse of the right to make a probationary employment contract, the existence of a probationary employment contract cannot be mentioned. 22nd Civil Chamber of the Supreme Court M. 2013/9215, Dcs. 2013/28777, Dated 10.12.2013 In its decision 22nd Civil Chamber clearly revealed that the right to make a trial period employment contract cannot be abused. According to that decision;
“…If this method is used only to abolish the rights of the worker, abuse of a legal right is mentioned. An example of this is when an employer makes a new contract with a probationary period to work in the same job with an employee who has worked at the workplace for years. Again, if the employer constantly employs workers with a 2-month probationary period and this becomes a general practice, it can be mentioned that there is bad faith…”
Since the rule is that there is no trial period, the person claiming the existence of this period is obliged to prove it. As long as it does not violate the prohibition of discrimination according to Article 5 of the Labor Law, the probationary period may differ for the workers.
Legally, the probationary period can be up to 2 months. However, this period can be extended up to 4 months with collective employment agreements. The probationary period starts to run on the date the worker actually starts working. A trial period can no longer be introduced while the service is actually being performed. In its decision dated 25.11.2008 of the 9th Law Department of the Supreme Court of Appeals, M. 2008/6168, Dcs. 2008/32048, it has clearly decreed that a probationary period cannot be introduced in the period when the service actually takes place. According to that decision;
“…Even if it is within the scope of a temporary employment relationship, there is no legal interest in concluding a trial-term employment contract with an employee to work in the position he actually performs. The plaintiff has been working as a general services manager at the workplace for approximately 5 months at the time of the contract, which includes the probationary period. Therefore, the trial registration written in the employment contract is invalid…”
In the presence of justifiable reasons; A probationary period may be registered in the recruitment of disabled ex-convicts or victims of terrorism who were injured while working at the workplace, in the re-employment of a worker who left the job due to military service or another duty arising from the law, and in the reemployment of a journalist who fell ill and recovered within 1 year. However, it is against the principle of honesty to subject an employee who previously worked at the same workplace to a retrial period, without any justified reason.
Like a worker who works without a probationary period, a worker working with a probationary period can participate in or organize union activities, take advantage of the right to strike, and benefit from a collective bargaining agreement during this period. Workers in probationary period must also be notified to SSK (Social Security Insurance. SSI for short.) and their insurance must be paid during this period. In addition, if the workplace is transferred during the trial period, the transferee employer may also benefit from the right of termination without compensation and notification provided by the trial period. Due to the rollover, the trial period does not start again.
As a rule, the provisions of the contract will continue unless there is an express notice of termination. No penal clause can be added to the contract for termination during the trial period!
The termination to be made during the trial period will be without notice and without compensation, regardless of any form conditions. However, if the probationary period is determined beyond the period specified in the law, the notice periods must be followed in the terminations after the legal period! The employee’s right is reserved for the wages he deserves during this period, for the receivables he receives for reasons such as public holidays, national holidays or overtime.
If the trial period is successful for both parties, the trial period employment contract will become a valid employment contract that includes the trial period.
Since severance pay is based on the employee’s starting date, the probationary period is taken into account in this compensation and in the annual paid leave calculation.
You can always contact us for information and assistance regarding the establishment or termination of employment contracts.
