Deneme Süreli İş İlişkisinde Ortaya Çıkan Hukuki Sorunlar
Vedat Laciner2012, Selçuk Üniversitesi Sosyal ve Ekonomik Araştırmalar Dergisi, The Journal of Social and Economic Research
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Abstract
Laçiner, Vedat: "Deneme Süreli İş İlişkisinde Ortaya Çıkan Hukuki Sorunlar", Selçuk Üniversitesi Sosyal ve Ekonomik Araştırmalar Dergisi, The Journal of Social and Economic Research , Yıl: 12, Sayı: 23, s.313-378, 2012, DOI: basılı, ISSN: 1303-8370 (Wissenschaftlicher Artikel) LEGAL PROBLEMS IN EMPLOYMENT RELATIONSHIP WITH A PROBATIONARY PERIOD ABSTRACT 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. Özet: İş ilişkisi; işçi ve işveren arasında kişisel, sürekli ve bağımlılığa dayalı bir ilişkidir. Bu nedenle sözleşme taraflarının yeterince birbirlerini tanımadan iş sözleşmesi bağıtlamaları kendileri açısından riskler taşımaktadır. Riskleri en aza indirgemek için kanun koyucunun getirdiği mekanizmalardan biri iş sözleşmesine deneme süresi şartı konulmasıdır. Deneme süreli iş ilişkisi, Türk iş hukukunun önemli konu başlıklarındandır. Çalışma içerisinde, İş Kanunu, Borçlar Kanunu, Basın İş Kanunu, Deniz İş Kanunu ve Mesleki Eğitim Kanunundaki deneme süreli iş sözleşmelerine ilişkin sorunlar tartışılmış ve çözüm önerileri sunulmuştur. Anahtar Kelimeler: istihdam, iş ilişkisi, deneme süreli iş sözleşmesi, deneme süreli işçi, Türk iş hukuku, Alman hukuku JEL Kodu: K31
