Under Art. 25/II-g of the Labor Law (İK), an employee’s failure to come to work without permission or without a just cause for two consecutive working days, twice within one month on the working day following a holiday, or for a total of three working days within one month may give rise to a right of termination for just cause.
For proof, it is important to draw up a report for each day of absence and to keep entry and exit records and shift schedules; if the termination is deemed unjustified, the employer may have to pay severance pay and compensation in lieu of notice as well as other employment receivables.
A formal notice served through a notary is not required by law, and not sending one does not on its own render the termination invalid; however, since this may create a risk in terms of proof, the employee should be asked in writing to submit their excuse and their documents, if any.
The right to terminate for just cause must be exercised within 6 working days from the day on which the authority entitled to terminate learned of the reason (İK Art. 26); while the absence continues without interruption, the lapse of this period from the date of the first absence does not on its own extinguish the right.
An employee’s failure to fulfill the obligation to attend work may, where certain conditions are met, give the employer the right to terminate the employment contract for just cause and with immediate effect. However, the mere fact that the absence has occurred is not sufficient. The duration of the absence, whether it is based on a just cause and the procedure followed by the employer must be assessed together.
In its settled case law, the Court of Cassation (Yargıtay) has made the finding "An employee’s absence from work does not in every case give the employer the possibility of termination for just cause." and has thereby stated that the mere occurrence of absence is not sufficient and that the question of an excuse and the statutory conditions must be examined meticulously (Court of Cassation, 22nd Civil Chamber, Docket No. 2017/27222, Decision No. 2020/1593, 04.02.2020).
Absence Constituting Just Cause for Termination
Under Article 25/II-g of Labor Law No. 4857, if the employee, without obtaining the employer’s permission or without a just cause, fails to come to work for two consecutive working days, twice within one month on the working day following any holiday, or for a total of three working days within one month, a right of termination for just cause may arise for the employer. Therefore, it is not a requirement, as is sometimes stated in practice, that the employee must be absent from work for three days in a row. For example, the condition laid down in the law may also be met if the employee fails to come to work for two consecutive working days without an excuse. However, if the failure to come to work is based on a just cause such as illness, a health problem, a compelling reason or leave granted by the employer, termination for just cause on grounds of absence cannot be carried out.
The Assembly of Civil Chambers has set out the periods of absence that make termination for just cause possible as follows: "In order to constitute just cause, the absence must have lasted, as provided for in the law, for two consecutive working days, twice within one month on the working day following any holiday, or for three working days in one month" Assembly of Civil Chambers of the Court of Cassation, Docket No. 2023/1042, Decision No. 2024/44, 31.01.2024
Establishing and Documenting the Absence
In terminations on grounds of absence, proof is of great importance. It will therefore be appropriate to draw up an absence report for each day on which the employee fails to come to work. The report should clearly state the employee’s name, position, the date of absence, the working hours and whether any leave or excuse has been notified to the employer. Having the reports signed by an authorized officer of the employer and, if possible, by employees who are aware of the absence increases their probative value. In addition, records such as staff entry and exit records, time clock records, shift schedules and correspondence with the employee must also be kept.
Assessing the probative value of reports, the Court of Cassation found the employer’s termination to be justified, having regard to the fact "that reports were drawn up by the defendant employer stating that the plaintiff employee was absent on December 2, 2014, December 3, 2014 and December 4, 2014, that the signatures of the defendant’s witnesses appear at the bottom of the reports as signatories of the reports, and that they confirmed the plaintiff’s absence" (Court of Cassation, 9th Civil Chamber, Docket No. 2016/20863, Decision No. 2020/8754, 22.09.2020).
Sending a Formal Notice to the Employee
Article 25/II-g of the Labor Law lays down, for termination on grounds of absence, no explicit requirement that a formal notice must necessarily be sent to the employee through a notary. Therefore, the fact that no formal notice has been sent does not on its own render the termination invalid. However, it may create a significant risk in terms of proof for the employer. In order to determine whether the employee’s absence is based on a just cause, the employee should be notified in writing and asked to submit their excuse and their documents, if any. In this way, the employer can demonstrate more strongly that it gave the employee the opportunity to explain and that, despite this, no justified excuse was put forward.
For example, if the employee has failed to come to work for three days in a row and the employer has directly carried out the exit procedure without sending any formal notice, the employee may later put forward illness, leave or another excuse of which the employer was aware. In this case, it may become difficult for the employer to prove the just cause for termination. For this reason, although a formal notice is not an absolute condition of validity, it is a step that is strongly recommended in practice.
Stating that sending a formal notice is not a mandatory formal requirement under the law, the Chamber used the words "the employer has no statutory obligation in this respect, and since the burden of proving that the absence was based on a just cause lies with the plaintiff" and, with regard to an employee who could not prove their excuse, ruled that "while the plaintiff’s claims for severance pay and compensation in lieu of notice should have been dismissed because of the employer’s termination for just cause, the decision to accept them is erroneous and constitutes a ground for reversal" (Court of Cassation, 22nd Civil Chamber, Docket No. 2017/29159, Decision No. 2020/5556, 03.06.2020).
The Termination Process and Observing the Time Limits
If termination for just cause is to be carried out on grounds of absence, attention must be paid to the peremptory periods regulated in Article 26 of the Labor Law. The employer must exercise the right of termination within the period provided for in the law, starting from the date on which it learned of the reason for termination. For this reason, the absence must be established, the employee must be given a short period to explain their excuse, and the termination must then be assessed without delay. The termination notice should clearly state the dates of absence and set out the reason for termination in concrete terms.
When the employment contract is terminated for just cause on grounds of absence, the peremptory periods regulated in Article 26 of Labor Law No. 4857 must be taken into account. Under that article, the employer must exercise the right of termination for just cause within 6 working days, starting from the day on which it learned of the reason for termination relating to the employee’s absence. In calculating the period of six working days, the date on which the authority entitled to terminate learned of the incident is taken as the basis, and the day of learning is not included in the period. However, if the absence is continuous, the starting point of this period is different.
Where the employee’s absence continues without interruption, the date on which the absence ends is important for the start of the peremptory period of six working days, since the act of absence is in the nature of a continuing breach. Therefore, where the employee continues not to come to work despite exceeding the periods of absence laid down in the law, the fact that six working days have passed since the first date of absence does not on its own extinguish the employer’s right of termination for just cause. By contrast, if the absence ends and the employee returns to work, the employer must exercise the right of termination within the statutory period.
For example, if the employee fails to come to work for two working days in a row without an excuse and then continues the absence without interruption, it cannot be accepted that the period of six working days expired on the date on which the first two days of absence were completed, since the conduct constituting the just cause for termination is continuing. By contrast, if the employee starts working again after being absent for two working days, the period of six working days must be assessed on the basis of the date on which the authority entitled to terminate learned of the absence and of the just cause for termination.
In this process, it is important that the employer draw up absence reports, give the employee the opportunity to explain their excuse and take the termination decision with due regard to the peremptory periods. The termination notice should clearly state the dates of absence and set out the reason for termination in concrete terms.
The Court of Cassation has assessed the application of the peremptory period of six working days in cases where the absence continues, and has accepted that, if the employee’s absence continues without interruption, it cannot be said that the peremptory period has expired, owing to the continuing nature of the conduct giving rise to the termination. The decision establishes that the continuation of the absence is important for the period within which the right of termination is to be exercised. Consequently, in terminations for just cause on grounds of absence, when the period of six working days is assessed, not only the first date of absence but also whether the absence is continuing, the date on which it ended and the time at which the authority entitled to terminate learned of the just cause for termination must be taken into account together (Court of Cassation, 9th Civil Chamber, Docket No. 2005/24318, Decision No. 2006/5304, 02.03.2006).
Risks of Procedural Irregularity for the Employer
If the absence is not adequately documented, the reports are drawn up afterwards, the employee’s excuse is not investigated or the grounds for termination are not clearly stated, the employer may have difficulty proving its claim of termination for just cause. If the termination is held to be unjustified, the employer may have to pay severance pay and compensation in lieu of notice as well as other employment receivables. Where the conditions are met, an action for reinstatement may also come into question. For this reason, in terminations on grounds of absence, it is important that the process be conducted in a written, orderly and provable manner.
In a dispute concerning a termination carried out on grounds of the employee’s absence, the Court of Cassation found that the employer had documented the dates of absence collectively in a single report and that this report had not been drawn up in accordance with the proper procedure. Stating that the allegation of absence had been put forward by means of a report drawn up unilaterally and that the employer had been unable to prove the just cause for termination with the evidence in the case file, it held that the employee’s claims for severance pay and compensation in lieu of notice must be accepted. On these grounds, it was unanimously decided that the decision of the local court dismissing the employee’s claims be reversed (Court of Cassation, 22nd Civil Chamber, Docket No. 2017/14569, Decision No. 2018/19834, 24.09.2018).
Addressing the fate of compensation claims where the termination has been documented in accordance with procedure and there is no excuse, the Court of Cassation reached the conclusion "that the termination of the employment contract by the defendant employer on grounds of absence is based on just cause and that the claim for severance pay must be dismissed" and made it clear that, otherwise, the employer would come under an obligation to pay compensation (Court of Cassation, 9th Civil Chamber, Docket No. 2024/3919, Decision No. 2024/5826, 26.03.2024).
Sample Documents for Use in Practice
In terminations on grounds of absence, it is of great importance that the process be conducted in a written and provable manner. In this context, the employee’s failure to come to work must be established in accordance with procedure, and the necessary notifications must be made in order to determine whether the absence is based on a just cause. Below are samples of a report establishing absence and of a formal notice concerning the notification of an excuse, which may be used as guidance in practice. These texts must be adapted taking into account the particulars of each specific case, the working arrangements of the workplace and the manner in which the absence occurred.
SAMPLE REPORT ESTABLISHING ABSENCE
“........................................, who works at our workplace in the position of ........................................, did not come to the workplace on .../.../20... even though working hours had begun.
As a result of the checks carried out, it has been established that the employee was not present at the workplace on the date in question and had no leave or excuse notified to the employer.
This report has been drawn up and signed on .../.../20... for the purpose of establishing the matter stated.
Employer/Employer’s Authorized Officer
Full Name:
Signature:
Witness to the Report
Full Name:
Signature:
Witness to the Report
Full Name:
Signature:”
SAMPLE FORMAL NOTICE
“NOTIFYING PARTY:
........................................
ADDRESSEE:
........................................
SUBJECT: Request for the submission of an excuse and documents concerning absence.
Dear ........................................,
In line with the findings made:
.../.../20...
.../.../20...
.../.../20…
it has been established that you did not come to the workplace on these dates and that you had no leave or excuse notified to the employer in respect of the dates in question.
If you have a justified excuse for your absence, you are required to submit your excuse and your related documents to the employer in writing within ... working days from the service of this formal notice on you.
You are hereby given formal notice that, if no justified excuse is notified within the specified period, the necessary steps, including termination, may be taken with regard to your employment contract under Article 25/II-g of Labor Law No. 4857.
Notifying Party
Employer / Employer’s Representative
Full Name / Title
Signature”
Att. Ömer Çebi
Att. Elif Çelik
This article is a general assessment prepared in accordance with the legislation in force on its date of publication; it does not constitute a legal opinion. This English text is a translation of the Turkish original; in case of any discrepancy, the Turkish version prevails.