Distinction between continuous and discontinuous work / Trial period in Turkey

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Continuous and discontinuous work in Turkey

In Turkey, article 10 of the Labour Law No. 4837 defines discontinuous work as work that lasts at most thirty working days in terms of its qualifications. Accordingly, the criterion of whether a work is discontinuous or not is the number of working days it should last rather than the number of days it lasts. From this point of view, even if a work lasts longer, if it can be completed in thirty working days at most, it will be considered as discontinuous work in Turkey and will have its consequences accordingly. The practical appearance of a work being a discontinuous work manifests itself as the non-application of certain provisions about that work. Accordingly, for a discontinuous work in Turkey, the following provisions are applicable: notification of the workplace (Article 3), service contract (Article 8), the limits of the distinction between fixed and indefinite-term employment contracts (Article 12), part-time and full-time employment contracts (Article 13), on-call work (Article 14), trial period (Article 15), serial termination (Article 17), and the responsibility of the new employer (Article 23), The provisions on termination of the employment contract and other related matters (Articles 24, 25, 26, 27 and 28), collective dismissal (Article 29), obligation to employ (Articles 30 and 31), failure to pay wages on time (Article 34), annual leave and related matters (Articles 53-59), employee personnel file (Article 75), severance pay fund (temporary Article 6) shall not apply.

According to the last sentence of the same provision, in case of discontinuous works, the provisions of the Code of Obligations shall apply to the matters regulated in the relevant articles.

Trial period in Turkey

According to Article 15 of the law, the trial period can be maximum two months. However, this period can be extended up to four months by collective labour agreements. During the probationary period, the parties may terminate the employment contract without a notice period and shall not pay compensation. However, the wages and other rights of the employee for the days worked are reserved.

At this point, it is useful to mention a few frequently encountered issues. Firstly, if the probationary period is not in writing, how to prove the existence of the probationary period. Accordingly, if the employment contract does not stipulate a trial period in writing, it will no longer be possible to prove the existence of a trial period, since the written trial period is a condition of validity.

The second issue is whether the probationary period can postpone the insured recruitment procedures that must be carried out according to Law No. 5510. Since there is no such regulation in the Law No. 5510, a defence in the form of trial period and failure to notify the insured employment during this period will not be valid.

Another issue is whether the workers who have previously worked in the workplaces will be subject to a probationary period again. Accordingly, it would be contrary to the rule of good faith to provide a probationary period for a worker who has previously worked at the workplace, whose employment contract has been terminated, and who has been deemed appropriate to be employed at a later time, or for workers who apply to the workplace to start working again and who are obliged to be employed upon this application according to the reason for leaving the workplace in Turkey (for example, being too disabled to work, being elected in the labour union, etc.). However, if the termination of the employment contract is based on a reason arising from the behaviour of the employee (e.g. absenteeism, failure to pay attention to work, etc.), it should be accepted that there will be no harm in stipulating a new trial period.