Termination of Employment Due to Military Service

Upon examination of Article 120 of Labor Law No. 4857 and Article 14 of the former Labor Law No. 1475, which is still in force and regulates severance pay, it is stipulated that an employee who terminates their employment due to compulsory military service is entitled to severance pay. In the TDK dictionary, the meaning of the word "muvazzaf" (compulsory/active duty) is defined as "military service, officers and non-commissioned officers on duty in the Armed Forces, and soldiers performing military service." The fundamental condition for entitlement to severance pay is to have worked in a workplace for at least 1 year. An individual wishing to receive severance pay due to military service must also have worked in the workplace for at least 1 year. According to Article 14 of Labor Law No. 1475, while an employee is entitled to severance pay upon termination of employment due to compulsory military service, they are not entitled to notice pay. Therefore, it can be stated that an employee wishing to go to military service has the right to terminate their employment contract with a sudden decision and without providing a notice period, even if they had not previously informed the employer.

Indeed, the 9th Civil Chamber of the Court of Cassation, in its ruling numbered 2017/11087 E., 2019/13276 K., stated the following regarding the matter:

“Notice pay is compensation that the party terminating an indefinite-term employment contract without just cause and without providing a proper notice period must pay to the other party. Since notice pay is compensation that the terminating party must pay to the other party, it is not possible for the party terminating the employment contract to be entitled to notice pay, even if the termination is based on a just cause. In cases where an employee terminates the employment contract due to reasons such as retirement, marriage, or compulsory military service, in accordance with the provisions of Article 14 of Law No. 1475, there is no right to claim notice pay. In such terminations, the employer also cannot claim notice pay.”

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It is observed that the Court of Cassation considers the period before which an employee going for paid military service training must terminate their employment contract as a criterion. This is because if a long period has passed and the employee has not yet gone for military service, it will be necessary to investigate whether the contract was terminated for military service purposes. In the event of resignation for military service, the employee may be entitled to compensation if they leave the workplace a reasonable period before the call-up date. As can be seen, it is clear that the intervening period must be a reasonable one. Upon reviewing the decisions of the Court of Cassation, it has been held that a period of 6-7 months before the call-up date for an employee to terminate their employment contract on the grounds of military service is not reasonable. We can state that in the Court of Cassation's decisions, an average period of 3 to 5 months is considered reasonable.

Is It Possible to Return to the Same Job After Military Service?

The return of employees who left their jobs due to military service to the same job after completing their service is regulated in Labor Law No. 4857. Accordingly, employees who left their jobs due to military duty must notify their employer of their desire to return to work within two months from the end of their duty. In this case, the employer is obliged to re-employ the worker under the current conditions, immediately if there is a vacant position similar to their former job, or by prioritizing the worker for the first available position if there is none. If the employer fails to fulfill its obligation to conclude an employment contract, it shall pay compensation equivalent to three months' wages to the former employee who requested re-employment.

Indeed, the 22nd Civil Chamber of the Court of Cassation, in its ruling numbered 2015/13446 E., 2016/18518 K., stated the following regarding the matter:

“From the scope of the file, it is understood that the plaintiff first worked at the defendant's workplace between 08.12.2005 and 10.08.2006, and this employment ended due to military service; upon returning from military service, he started working again on 16.11.2007, and this employment ended on 31.12.2009. Thus, since the plaintiff's first period of employment ended due to military service, severance pay for this period should have been calculated and awarded...”

Can an Employee Performing Paid Military Service Receive Severance Pay?

• ##### The 21-day paid military service regulation in 2018

With Law No. 7176, which came into force in 2018, Provisional Article 55 was added to Military Law No. 1111 dated 1927, stipulating that men within a certain age range would be deemed to have fulfilled their military service on the condition that they pay a certain amount of money and complete 21 days of basic military training. It was accepted that those who would benefit from this provision would be considered on unpaid leave by their workplace during the period of basic military training. This situation leads to interpretations and discussions as to whether those performing paid military service can only be considered on leave, and thus whether they have the right to terminate their employment.

According to one view, if an employee terminates their employment due to military service in accordance with Article 14 of Law No. 1475, and fulfills the 1-year seniority requirement for severance pay, they are entitled to receive severance pay. Therefore, it is stated that in the case of paid military service, if the employee terminates their employment even for the 21-day basic military training and fulfills the 1-year seniority requirement, they are entitled to severance pay.

Another view is that since those performing paid military service are considered on unpaid leave by their workplaces, institutions, and organizations during the basic military training period, their employment contracts will continue for this 21-day period, termination procedures will not be carried out, there will be no risk of unemployment after military service, and therefore they will not be entitled to severance pay.

Since there is no established judicial precedent in this regard, it is not easy to predict how the courts will rule. In our opinion, the introduced regulation provides an optional right and paves the way for employees who do not wish to terminate their employment contract to be considered on unpaid leave.

• ##### The permanent paid military service regulation in June 2019

Following the 2018 regulation, the paid military service practice was made permanent with the Conscription Law No. 7179, which came into force on June 25, 2019. In other words, without waiting for a new regulation each year; a number of individuals determined by the Ministry of National Defense, identified by lottery, will now always be able to benefit from paid military service if they meet the conditions. According to the amendment, those who pay the fee determined by the ministry in advance and complete one month of basic military training will be deemed to have fulfilled their military service. Unlike the previous 2018 regulation, this newly introduced permanent paid military service regulation does not contain any provision regarding being considered on unpaid leave.

In conclusion, it is observed that the institution of unpaid leave was also removed from the text of the law in the June 2019 regulation. Therefore, it must be accepted that employees who terminate their employment contract due to performing paid military service after this date will be entitled to severance pay.

What Should Be the Content and Attachments of the Termination Notice to Be Sent by an Employee Terminating Employment Due to Military Service?

An individual wishing to receive severance pay due to military service must first prove that they are indeed going to military service. For this purpose, a "Military Call-Up Document" obtained from the relevant institution must be attached to the termination notice. The military call-up document and the notice of termination must be submitted to the employer in writing.

Sample Petition for Termination of Employment Due to Military Service

Av. Mehmet Yücesoy

İzmir Attorney & Legal Consultancy