DENEME SÜRELİ İŞ İLİŞKİSİNDE ORTAYA ÇIKAN HUKUKİ SORUNLAR

Vedat Laçiner

LEGAL PROBLEMS IN EMPLOYMENT RELATIONSHIP WITH A PROBATIONARY PERIOD

Yıl 2012, Cilt: 12 Sayı: 23, 313 - 378, 01.06.2012

Öz

The feature of business contracts, which constructs individual and continuous
relationship, accounts for the valid ground the necessity of mutual probation. As business
contract sets a “continuous dept relationship” which is based on mutual trust, the
employer reaps the benefit of this probationary period in terms of seeing the employee’s
vocational knowledge and skill, working style and then accordance with the business and
vocational behavior.
Probationary period aims to give an idea to the employer about the individual’s
appropriateness for the job. During the probationary period, employee’s personal
appropriateness is tested in addition to that of his vocation. It is almost out of question in a
business contract to learn about personal appropriateness without mutual probation.
Probationary period also gives the chance to the employee to understand whether the job
is appropriate for his/her expectations. The employee will want to be aware of the relationship in the working place, and he/she will also test the appropriateness of job
position in question. Thus, an employee who is employed with a permanent contract will
have the opportunity to be acquainted with the job, employer, working place, the other
workers, to evaluate whether he/she will conform to working conditions, to knock off the
position easier unless he conforms. Even though a business contract with a probationary
period provides advantages for the employee, it is generally accepted that it is far behind
of the employer’s benefit.
Briefly, employment relationship with a probationary period means an employment
relationship which provides both to the employer and the employee with the opportunity
for the probation of the other party in the contract, his/her work position, and the working
place in accordance with the continuous and long term relationship. Moreover,
probationary period can be defined as the beginning time when the participants of the
business contract legally guarantee their decision on whether they will maintain the
contract or not.
In the 15th article of labour law, business contract with the probationary period was
edited. According to this article; “When an entry of probation is set in the business
contract in parties, the period lasts at most for two months. However, the probationary
period can be lengthened up to four months with the collective bargaining agreement. In
the probationary period, the parties can cancel the business contract without the need for
the announcement time and compensation. The payment and other rights of the employee
are legally guaranteed for the days he/she works.” The legal decisions related to the
service contract of Code of Obligations are administered to the employees who are
beyond the scope of the Labour Law with number 4857, Media Employment Law, Marine
Employment Law. The probationary period is organized in the Code of Obligations, under
the heading of “The Termination of Service Contract”, in the issue of the announcement
time of cancellation of the open-ended-employment contract, in the 433rd article.
According to this article; the parties can set probationary period on the condition that it
will not exceed two months. The parties can cancel the service contract without any
compensation even if they agree on the time of the probationary period and the
cancellation period which they do not have to obey. The payment and other rights of the
employee are legally guaranteed for the days he/she works.” As it can be seen, the
regulation in the content of the probationary period is the same on principle both in the
Labour Law and in the Codes of Obligations.
A probationary period is not automatically set at the very beginning of the business
contract. A probationary period is only possible with the agreement of the parties on the
setting a probationary period. A probationary entry must be available in the business
contract for the existence of probationary period. In the 15th article of Labour Law, there
exists a passage mentioning “when an entry of probationary period is set in the business
contract by the parties…” To the Court of Appeal; what is fundamental is that the
business contract should be constructed without mentioning of the probationary period.
The construction of a business contract with an entry of probationary period is an
exceptional situation. The employee’s being newly employed is not regarded as the only
proof of the parties foreseeing the length of the probationary period. It is a must that the
parties clearly decide on the probationary period. The only exception of the probationary
period’s being not related to the parties’ decision is in the Vocational Training Law with
which it is a must that probationary period is predetermined before the contract is done
with the apprentices. It should be “clearly” understood from the contract that the probationary period is
determined. This is because there is no indication signifying the existence of probationary
period in the starting point of business contract. According to German Law; if a
probationary period is determined in the contract, a job with an indefinite period indicates
the probationary period as the starting point in any case of doubt. If a contract with a
given period is demanded, it should be pointed out in the contract clearly. The party
which claims the determination of business contract with a definite probationary period is
obliged to prove it in Turkish Law.
There is no distinct arrangement in Labour Law concerning the necessity to make a
written business contract with probation entry. However, probationary period in
application is determined especially in written business contracts.
As the starting point of the probationary period, the date on which the employee
actually starts work is taken into consideration, but not the date of the contract. That is
because it is only possible with actually starting the work to probate each other. In the
case of employer’s delayed acceptance to work in the very beginning of the contract,
probationary period cannot be mentioned to start even if the business contract begins to
run. In this context, it is not possible to benefit from the rules which were set for the
probationary period in the fifteenth article of Labour Law as the parties have not started to
probate each other. A contrary idea will lead to misuse of arrangement which has been put
forward by the law. Cancellation without denunciation and compensation can only be
used after probation.
During the probationary period employee or employer can annul the contract without
paying compensation or waiting for the announcement time. Then, if the kind of contract
is fixed term, “the end of the period” and if it is open-ended term “the announcement
time” will not be watched over. Thus, without waiting for the announcement time in
business contracts with open-ended term, it will not cause the obligation of denunciation
compensation.
In fixed-term business contracts, the employer who dissolves within probationary
period will be saved from paying until the end of the contract. If the employee dissolves,
he/she will also be saved from serving the employer in the rest of the time determined in
fixed-term business contract.
There is no need for one party to wait until the end of predetermined probationary
period in order to use its right for terminating the contract. If there is no agreement in the
contrary, the contract can be cancelled at any time in the probationary period.
In probationary period during the parties’ cancellation, there is no necessity to submit
a valid and just ground which is related to the aim of probationary period. The party
which cancels is not supposed to prove as a rule that the probation is unsuccessful. Even
probation’s being seen as successful impartially doesn’t impede the use of cancellation
rights within probationary period unless the contract has not been annulled on account of
misuses such as the employee’s enrollment to a syndicate or his/her complaints.
The main reason of the legal problems regarding the business contracts with
probationary period is that laws and regulations are not presented in detail and in a crystal
clear way. Thus, the legal inconsistencies related to the probationary period are dealt with
interpretation method. In order to overcome the inconsistencies in the implementation,
new and detailed adjustments are proposed. In addition to these facts, many rules
especially in the Media Employment Law and Marine Employment Law are far from
meeting the needs of the implementation as they are out of date. Therefore, the problems emerging from the wearing out of the adjustments related to the probationary period in
such laws form the main focus of this study.
With regards to the comparing and contrasting the rules related to the periodical
cancellation and probationary period, one of the main problems is that Turkish Labour
Law involves extremely deficient rules. It is natural that a weaker arrangement is done in
the termination of a business contract with a probationary period than the ones arranging
the periodical cancellation as the parties demand to get rid of the business relationship
easier during the probationary period. As a matter fact, the case is the same in both
German and Swiss Laws. However, the rules related to the termination of the contract
with periodical cancellation are so weak in Turkish Law that legislator has chosen the way
to completely abolish the announcement time in termination of business contract with
probationary period as it will be easier relative to periodical cancellation. Consequently,
in order to prevent negative effects of immediate cancellation on parties during
probationary period; even it is within this period, it will be accurate to bring at least aweek-announcement
with a law change as in the case of Swiss Law

Anahtar Kelimeler

employment, employment relationship, service contract with a probationary period, probationary employee, Turkish labour law, German Law