I. INTRODUCTION

Although fixed-term employment contracts were initially accepted without any restrictions as a natural consequence of the principle of the contract freedom, the tendency to limit the fixed-term employment contract in order to protect the worker has emerged in legal systems since the 1960s, but later, in order to counter the increasing competition conditions with globalization, the need to protect businesses has emerged. As a result, in developed legal systems, including Turkey, there is an effort to create a delicate balance between the protection of workers and the need for flexibility of businesses in the establishment and renewal of fixed-term employment contracts.1

According to the first paragraph of Article 11 of the Labor Law No. 4857 regulating the fixed-term employment contract, the contract will be deemed indefinite-term unless the employment relationship is made for a certain period of time, and a fixed-term employment contract is an employment contract made in writing between the employer and the employee for a certain period of work or depending on objective conditions such as the completion of a certain work or the materialisation of a certain event. As it is understood from the provision of the article, in Turkish Law, not binding the employment contract to a period of time is the main rule, while making it for a definite term is the exception. In other words, it is seen that it is the rule to conclude an indefinite-term employment contract, and the conclusion of a fixed-term employment contract is subject to the condition that there is an objective reason justifying the duration of the contract. As can be understood from the provision of the article, the two conditions required for a contract to be accepted as a fixed-term employment contract are that the contract must be made in writing and there must be an objective reason for the contract to be made for a fixed term.

The objective reasons affecting the validity of employment contracts are stated in the article as "for fixed-term employment or the completion of a certain work or the occurrence of a certain fact". As it is understood from the expression "such as" in the article, the objective conditions are not listed in a limited number (numerus clausus). The objective conditions mentioned abstractly in the article will be concretized by the opinions in the doctrine and judicial decisions. As a matter of fact, this issue has also been stated by the 9th Civil Chamber of the Court of Cassation in its decisions.2

In order for a reason to be accepted as an objective condition, it must be an objective condition that justifies a fixed-term contract. The main motive of the legislator in seeking the objective condition that will justify the fixed-term contract when it is made for the first time and when it is made in succession is the principle of preventing the abuse of the right and protecting the economically weaker worker, which is also adopted by the Court of Cassation and the doctrine.

As a rule, a fixed-term employment contract terminates automatically upon the expiration of the term specified in the contract, without the need for any termination declaration. Therefore, those who work with such contracts will not be entitled to severance and notice pay under the Labor Law due to the automatic termination of the contract, and those who work with a fixed-term employment contract will not be covered by job security and will not be subject to a reemployment lawsuit.

In this study; the elements of objective conditions in fixed-term employment contracts and the evaluation of these conditions will be discussed.

II. ELEMENTS OF A FIXED-TERM EMPLOYMENT CONTRACT

A) Element of Writtenness

Although Article 8 of the Labor Law only stipulates that employment contracts of 1 year or more must be in writing, Article 11 of the Labor Law, which defines a fixed-term employment contract that is incompatible with Article 8 of the Labor Law, stipulates that all fixed-term employment contracts must be in writing without making any distinction in terms of duration. Although there is a contradiction between the two articles and there are different opinions on this issue in the doctrine, in practice, in general, all fixed-term contracts are made in writing. Article 8's obligation to be in writing for contracts of 1 year or more is mostly interpreted in terms of proof.

B) The Element of Objective Condition

The fact that the employment contract is concluded for a certain period of time and that it is in writing is not sufficient for the employment contract to be considered as a fixed-term employment contract. In order for the employment contract to be considered as a fixed-term employment contract, there must also be objective conditions that require the employee to work under a fixed-term employment contract. Although the concept of objective reasons is not explicitly defined in the Labor Law, Article 11 defines a fixed-term employment contract and lists the general criteria for determining the objective conditions that allow for the duration of the contract with an abstract approach.3

1 - Fixed Term Work

An Fixed-term employment is employment where the end of the work is known or foreseeable during the execution of the contract. In this case, the date when the work will end can be clearly determined, or if no date is agreed, but the duration of the employment contract can be clearly understood from the purpose and nature of the work, then the employment contract can also be made for a fixed term. In practice, the expiry date of the contract is usually clearly indicated by writing a specific date. However, due to the nature and purpose of the work to be performed, it must be objectively determinable with sufficient clarity when the employment contract to be accepted as fixed-term will end.4 In other words, in order for the contract to be accepted as fixed-term due to the nature and purpose of the work carried out by the employer or undertaken by the employee, the termination time of the work must be clearly known or knowable. In its decision, the Court of Cassation deemed the contract to be of indefinite duration on the grounds that "there is no concrete date as to when the road construction work will end, although it is stated that it will continue until the completion of the Bartın-Amasra road, and the end date of the work is not foreseen.5

Examples of fixed-term employment contracts are the construction of a garden wall that will be completed in 20 days at most, the installation of computer equipment that will probably be completed in 15 days, as a guide in one of the pavilions of a fair that will be open for a month, as a guide in an international congress that will continue for twelve days, to replace a worker who is ill or gives birth, or to be employed in seasonal work or campaign work.6 In short, the known work in a fixed-term employment contract is like the construction of a building or the construction of a bridge.

2 - Completion of a Certain Work

Another objective condition listed in the article for the conclusion of a fixed-term employment contract is the completion of a certain work. What is meant by the completion of a certain work may be the completion of an unfinished work or the completion of a work that has not yet begun.7What is important here is that the end of this work is known or foreseeable. Examples of such cases include the completion of a construction, the completion of highway construction, the realization of landscaping, the organization of a fair or festival, or the execution of a project with a duration.8

3 – The Materialisation of a Certain Event

The materialisation of a certain event is another objective condition that allows the conclusion of a fixed-term employment contract. The emerging certain event must be a reason that justifies the conclusion of a fixed-term employment contract. For example, a fixed-term employment contract may be concluded if a certain event that arises outside the normal activity of the enterprise and outside the continuous situation causes a temporary need for labor force.9 In short, the existence of a certain event and the existence of an objective condition for the conclusion of a fixed-term employment contract must overlap with each other. If we give examples of these certain events from various decisions of the Court of Cassation, it is accepted that a certain event has occurred and that this is an objective condition in cases such as an extraordinary increase in work intensity for a temporary period of time, the emergence of an urgent order work, the conclusion of a fixed-term contract with another employee for a certain period of time instead of the employee who is on leave due to illness, pregnancy or any other situation and whose employment contract is suspended.10

4 - Other Objective Conditions

Although the nature of the work rather than the nature of the employee is taken into consideration in order to conclude a fixed-term employment contract in the law, the Court of Cassation has considered the nature of the employee as a measure for a fixed-term employment contract in many of its decisions.11

Some of the objective conditions for the conclusion of fixed-term employment contracts are; employment contracts for seasonal work, employment contracts for caring for patients and employment contracts with professional football players and artists.12

Although seasonal employment is considered an objective condition for the conclusion of a fixed-term employment contract, in some decisions of the Court of Cassation, it is considered that seasonal employment is not an objective condition for the conclusion of a fixed-term employment contract.13

Some professions may in themselves constitute objective grounds for fixed-term employment contracts. Nursing or general management is one of such professions.14The Court of Cassation is of the opinion that the objective criteria for a fixed-term employment contract are met due to the qualifications of general managers and nurses.

Provisions in the laws that require or enable the conclusion of a fixed-term employment contract are also considered among other objective conditions. For example, according to paragraph 1 of Article 9 of the Law No. 5580 on Private Education Institutions, the employment contract between the founder or the representative of the founder and the administrators, teachers, expert instructors and master instructors working in the institutions shall be made for a fixed term in writing in accordance with the principles specified in the regulation for at least one calendar year. Thus, it is mandatory that the employment contracts to be concluded with private school teachers, principals and other administrators shall be fixed-term and shall not be for less than one year.15

III. Chain Renewal of the Contract and Conversion of a Fixed Term Employment Contract into an Indefinite Term Employment Contract

According to Article 11 of the Labor Law,"An employment contract for a definite period must not be concluded more than once, except when there is an essential reason which may necessitate repeated (chain) contracts. Otherwise, the employment contract is deemed to have been made for an indefinite period from the beginning. Chain contracts based on essential reasons shall maintain their status as contracts made for a definite period.''

The concepts of essential reasons stated in paragraph 3 of Article 11 of the Labor Law and objective reason stated in paragraph 1 have the same meaning.16 As a matter of fact, the concept of just cause used in the decisions of the Court of Cassation for chain contracts has the same meaning. If a fixed-term employment contract is to be renewed, there must be a essential reason. In the renewal of a fixed-term employment contract after its expiration, the essential reason may be the same as the objective reason that led to the conclusion of the first contract, or it may be another essential reason. In case of renewal of the contract, there is no clarity in the decisions of the Court of Cassation and there is a debate in the doctrine as to whether there is a certain period of time between the renewed contract and the first contract. For example, in its decision, the Court of Cassation accepted three separate contracts with gaps of 6 and 7 months between them as fixed-term contracts.17

The Court of Cassation has adopted the view of limiting chain employment contracts that continue for years and states that the employment of the employee for a long period of time with chain employment contracts will be accepted as indefinite-term employment.18 For example, in one of its decisions, the Court of Cassation ruled that, except for special laws, the purpose of Article 11 of the Labor Law No. 4857 would be exceeded with fixed-term employment contracts concluded consecutively for a period of six years, and therefore, the employee should be considered to be working with an indefinite-term employment contract.19

For these reasons, the employee should not be employed with a fixed-term employment contract for many years, even if it is based on a essential reason. In the event of a chain renewal of a fixed-term employment contract without a justified reason, the employment contracts that were first constructed and accepted as fixed-term will also be accepted as indefinite-term.

The Labor Law considers fixed-term employment contracts that are not based on an objective reason to be of indefinite duration, whether they are concluded once or more than once. In such cases, fixed-term chain employment contracts turn into indefinite-term employment contracts and the employee's right to notice and severance pay arises. Here, the existence of objective and justified reasons in social and economic terms will be sought. As a matter of fact, in some decisions of the Court of Cassation, it is stated that; "The existence of reasons that justify the conclusion of a fixed-term employment contract in succession does not cause them to turn into an indefinite-term employment contract".20

The Court of Cassation, in a 2002 decision regarding the type of employment contract of a nurse, stated that "...whether the nursing job is qualified or not is important for the solution of the problem. Considering the conditions of our country and the Constitutional right to health, the fulfillment of the nursing duty is of great importance" and "even if the employment contracts between the nurse and the hospital are consecutive, each of them is accepted to be for a definite period of time". When the contract made by the nurse is considered as fixed-term because the nursing profession is important, it is obligatory to consider it as fixed-term because the doctor's service is more important.21

IV. CONCLUSION

In a situation where a fixed-term employment contract is subject to objective conditions, when the parties conclude an employment contract by agreeing on a fixed term, the contract is deemed to be an indefinite-term contract if there is no objective reason. As a matter of fact, as stated above, indefinite-term employment contracts are the main rule, while fixed-term employment contracts are the exception.22 In the presence of one of the objective reasons, the parties are not free to determine the duration of the employment contract; the duration must be determined by taking into account the objective reason in this regard. On the other hand, if there is a essential reason for the succession of a fixed-term contract, the contracts will not be converted into indefinite-term contracts, but will retain their fixed-term characteristic. In the absence of an objective reason, the employment contract will be deemed indefinite even if the duration of the contract is determined by the employee and the employer.

Article 11 of the Labor Law No. 4857 states that the objective conditions for a fixed-term employment contract to be concluded are that the work must be for a certain period of time, that it must be aimed at the completion of a certain work or that a certain event must occur, and then it is stipulated that the objective conditions are not limited to those listed in the article by including the expression "such as". Therefore, a fixed-term employment contract may also be concluded in the presence of objective conditions that do not fall under these three conditions. For example, it is accepted that the objective condition is met in the works performed by stage artists.23

The fact that the work performed by the employee is of a continuous nature does not prevent the conclusion of a fixed-term employment contract with this employee. If there is a fact that requires a fixed-term contract with an employee who works in a continuous job, such as the other employee who performs this job getting sick, taking a report or taking unpaid leave, a fixed-term employment contract may be concluded between the employee and the employer. However, since the objective reason requirement is sought not only in the establishment of the contract but also in its renewal, if a fixed-term contract is renewed without a substantial reason, the contract is deemed to be indefinite from the beginning.

BIBLIOGRAPHY

1) Istanbul Law Journal, Determination of the Objective Reason Condition in the Conclusion and Renewal of Fixed Term Employment Contracts, Canan Ünal Adınır

2) 9th Civil Chamber of the Supreme Court Case No. 2008/27905 Decision No. 2009/11203, dated 20.04.2009, 9th Civil Chamber of the Supreme Court Case No. 2008/27838 Decision No. 2009/11182, dated 20.04.2009, Legal Labor Law and Social Security Law J., P. 22, 666-672.

3) Başterzi, 'Objective Condition' (n 10) 424; Süleyman Başterzi, 'Evaluation of the Decisions of the Court of Cassation in 2009 in terms of the Conclution, Provisions and Regulation of the Employment Relationship' (2011) Evaluation of the Judgments of the Court of Cassation on Labor Law and Social Security Law 2009, 1, 61-62; Bozkurt Gümrükçüoğlu, Fixed-Term Employment Contract (n 9) 15

4) TAŞKENT, Savaş, "Conclusion of Fixed Term Employment Contracts", Legal Labor Law and Social Security Law J. 9/2006, s.35

5) 9th Civil Chamber of the Supreme Court numbered 2474/15155, dated 22.09.2003, KILIÇOĞLU, M, Labor Law Interpretation and Supreme Court Practice, Istanbul, 2005 , s.59.

6) ECONOMY, Münir, "Law No. 4857 on the Legality of Fixed Term Employment Contracts (I) Concept, Duration and Renewal" Legal Labor Law and Social Security Law J.9/2006, s.22-23.

7) YİBGK, 10/1, 08.03.2019; 7th Civil Chamber of the Supreme Court, 16480/23889, 01.12.2015

8) ALPAGUT, Gülsevil, "Law No. 4857 on Fixed Term Employment Contracts", MERCEK, Ocak 2004, s.79.

9) Istanbul Law Journal, Determination of the Objective Reason Condition in the Conclusion and Renewal of Fixed Term Employment Contracts, Canan Ünal Adınır

10) YİBGK, 10/1, 08.03.2019; Süzek (n 9) 242; Çelik, Caniklioğlu ve Canbolat (n 9) 194; Canbolat (n 9) 195; Sümer, Labor law Practices (n 10) 46; Güler (n44; Güzel, Özkaraca ve Ugan (n 9) 540; Mollamahmutoğlu, Astarlı ve Baysal (n 7) 129; Centel (n 10) 72; Akyiğit (n 17) 118.

11) Çiğdem Yorulmaz, "Definition, Form, Freedom of Contract Making and Limits of Fixed Term Employment Contracts", Journal of Labor and Society,Sayı:2010/1, s.215.

12) Ersin Umdu"For which jobs can a fixed-term labor contract be concluded" Approach Journal,Number:204, year 2009 p. 204.

13) 9th Civil Chamber of the Supreme Court Case No. 2002/28341 Decision No. 2002/21255, dated 13.11.2002

14) Serkan Ayan, "Fixed Term Employment Contract", A.U. Law Faculty Journal, C.54, S.4, Ankara 2005, s.451.

15) 9th Civil Chamber of the Supreme Court Case No. 2007/24530 Decision No. 2008/171, dated 18.02.2008, 9th Civil Chamber of the Supreme Court Case No. 2001/18306 Decision No. 2001/1898, dated 07.02.2001,

16) EYRENCİ/TAŞKENT/ULUCAN, Individual Labor Law, 2nd Edition, İstanbul 2005, s.50; UÇUM, Mehmet, New Labor Law Seminar Notes, İstanbul 2003, s.35.

17) 9th Civil Chamber of the Supreme Court Case No. 2001/18306 Decision No. 2001/1898, dated 07.02.2001,

18) Süzek, s.245-246.

19) 9th Civil Chamber of the Supreme Court Case No. 2005/12170 Decision No. 2005/15792, dated 05.05.2005,

20) 9th Civil Chamber of the Supreme Court numbered, dated 31.10.1989, 6047/9302, YKD, Nisan 1990, s.553; SÜZEK, Sarper, Yarg. 1989 Decisions , p.60.

21) 9th Civil Chamber of the Supreme Court Case No. 2001/20847 Decision No. 2002/7404, dated 09.05.2002,

22) 9th Civil Chamber of the Supreme Court Case No. 2007/24530 Decision No. 2008/171, dated 18.02.2008,

23) Gülsevil Alpagut, Fixed Term Service Contract, Ankara 1988, s.81.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.