Dismissal during the probationary period is not merely a process in which the parties may unilaterally and easily terminate the employment relationship; it is also a critical stage in which the mutual suitability of the employment relationship is tested and the legal boundaries of this process are defined. Establishing an employment contract with a probationary period gives the employer the opportunity to assess the employee’s competence, while also allowing the employee to experience the working conditions and workplace culture. However, the fact that this period provides an easier termination mechanism does not mean that the parties may act arbitrarily. Under Turkish law, dismissal during the probationary period is regulated under Article 15 of the Turkish Labor Code, and a significant portion of the disputes frequently encountered in practice arises from a misunderstanding of the legal nature of the probationary period.
This article examines in detail the legal framework of the probationary period, the conditions for termination of an employment contract with a probationary period by the employer, the conditions for termination by the employee, the rights that the employee cannot waive during dismissal within the probationary period, the differences in dismissal procedures after the probationary period has expired, whether a notice period is required during the probationary period, cases in which dismissal may be deemed invalid, and the risks to which the parties may be exposed. It also addresses how probationary period practices should be structured in the workplace, the practical consequences of the probationary period rules under the Labor Code, and the protection of employees’ rights during the probationary period.
Probationary Period and Its Legal Framework
A probationary period is a special period stipulated at the beginning of the employment relationship, designed to allow the parties to become acquainted with one another, assess each other, and test mutual compatibility, while making termination of the contract easier. During this period, the employer observes the employee’s skills, work ethic, and adaptation to the job, while the employee experiences the working conditions, wage policy, and workplace environment. Under Turkish labor law, the probationary period begins when the parties enter into an employment contract containing a probationary clause, and special rules apply to termination of the contract during this period.
Probationary Period Under the Turkish Labor Code
Article 15 of the Turkish Labor Code No. 4857 is the principal statutory provision expressly regulating the probationary period. The relevant provision reads as follows:
“When a probationary clause is included in the employment contract by the parties, the duration of such period may not exceed two months. However, the probationary period may be extended up to four months through collective bargaining agreements. During the probationary period, the parties may terminate the employment contract without being required to observe a notice period and without compensation. The employee’s wage and other rights for the days worked are reserved.”
This provision establishes that the probationary period is a mutual assessment period for both the employer and the employee. The purpose of the provision is to enable the parties to make an informed decision when establishing the employment relationship and to allow the relationship to be terminated easily in the event of incompatibility. While the probationary period gives the employee an opportunity to understand whether the workplace meets their expectations, it also enables the employer to assess the employee’s suitability for the job, skills, and workplace adaptation. In practice, probationary periods are used more frequently in sectors requiring qualified labor and in senior-level positions, and proper management of this period is critically important in preventing future legal disputes. The operation of the probationary period requires the parties to act within a relationship of mutual trust and in accordance with the rules of good faith.
How Long Is the Probationary Period and How Is It Determined?
Under Article 15 of the Turkish Labor Code, the probationary period may be agreed for a maximum of two months. This period must be expressly included in the employment contract entered into between the employee and the employer; otherwise, the rules applicable to probationary periods will not apply, and the contract will be treated as a regular employment contract from the outset. If the employment contract does not contain a probationary clause, the employer cannot terminate the employee under the rules governing probationary periods, and in such case the general termination requirements set out under Article 18 et seq. of the Turkish Labor Code must be observed. The probationary period may be agreed for a shorter duration than two months; for example, one month or 15 days may also be agreed. However, any period exceeding two months is deemed to be two months pursuant to the principle of interpretation in favor of the employee, and the excess portion is considered invalid.
The probationary period may be extended up to four months through collective bargaining agreements, and a shorter period may also be agreed. Probationary period practices may vary across sectors. For example, in the technology sector, a full two-month probationary period is often stipulated for senior software developer positions, whereas shorter periods may be preferred for positions such as retail sales staff. In determining the probationary period, the nature of the work, the level of expertise required, and the employee’s adaptation process should be taken into account.
Conditions for Dismissal During the Probationary Period
Dismissal during the probationary period is a process in which the parties have a much more flexible right of termination compared to an ordinary employment contract. This flexibility is directly connected to the purpose of the probationary period: the parties do not wish to assume the risk of being bound by a long-term employment relationship before fully becoming acquainted with each other and testing mutual suitability. However, this flexibility does not mean that the parties may terminate the contract arbitrarily or in bad faith. The validity of dismissal during the probationary period depends on the termination being made before the probationary period expires and the notice of termination reaching the other party within that period.
Termination of an Employment Contract with a Probationary Period by the Employer
The employer may terminate the employment contract during the probationary period without providing any reason. Article 15 of the Turkish Labor Code grants the employer the right to terminate the contract within this period without notice and without compensation. This means that the employer may decide to terminate the contract after assessing the employee’s performance, work ethic, adaptation to the job, or any other relevant factor. The employer is not required to state the reason for termination; however, in practice, using courteous and professional language when notifying the employee helps prevent potential reputational issues that may arise later. The notice of termination must reach the employee before the probationary period expires; otherwise, the termination may be deemed invalid, and the employee may assert their rights.
The employer must not abuse the right of termination during the probationary period. For example, if the termination is based on discriminatory grounds such as the employee’s union membership, pregnancy, military service status, or political opinion, the employee may claim compensation under the general legal provisions. A termination made in bad faith constitutes a violation of the principle of good faith under Article 2 of the Turkish Civil Code, and in such case the employee may file a lawsuit for pecuniary and non-pecuniary damages. Dismissal during the probationary period should be based on the employer’s objective assessment and should not be carried out for arbitrary or unlawful purposes. Acting carefully during this process reduces legal risks and protects the company’s reputation.
Termination of an Employment Contract with a Probationary Period by the Employee
The employee may also terminate the employment contract during the probationary period without providing any reason. For example, the employee may end the contract without stating that the working conditions do not meet their expectations, that the workplace culture is not suitable for them, or that they have found another employment opportunity. The employee’s resignation during the probationary period does not create any obligation to pay compensation to the employer, and the employee is not subject to any notice period during this process. However, a sudden and unexpected departure by the employee may adversely affect the employer’s business planning; therefore, in practice, it is preferable for the employee to inform the employer of their intention to leave in advance as a matter of professional workplace relations.
Cases Where the Employee Cannot Waive Their Rights During the Probationary Period
Even if the employee is dismissed during the probationary period, there are certain rights that the employee cannot waive. The employee may claim wages for the days worked during the probationary period and may also require the employer to pay their social security premiums. The mandatory provisions of the Labor Code do not allow the employee to waive these rights, and any contractual provision to the contrary is deemed invalid. Even if the probationary period ends, the employee must receive full payment for the period actually worked; otherwise, the employer may face an employment lawsuit arising from unpaid wage claims.
The right to annual leave arises once the employee completes one year of service pursuant to Article 53 of the Turkish Labor Code; however, the days worked during the probationary period are also included in this service period. Even if the employee leaves employment after the probationary period, the employee may request that the days spent during the probationary period be included in the calculation of the one-year service period for annual leave purposes. Social security premiums must also be paid regularly throughout the probationary period; the employer is required to register the employee with the Social Security Institution and pay the relevant premiums. Failure to pay premiums during the probationary period may result in administrative and legal sanctions against the employer.
Notice Period and Notification Rules During the Probationary Period
Termination of an employment contract during the probationary period is subject to a procedure that differs from ordinary termination processes. Article 15 of the Turkish Labor Code expressly provides that, during the probationary period, the parties may terminate the employment contract without stating any reason and without any compensation obligation. This rule also has certain consequences for notice periods and the form of notification. In practice, employers often hesitate as to how a dismissal decision should be communicated during the probationary period. Whether written form is required for the validity of termination, when the notification must be made, and which procedure should be followed are matters of practical importance. Although the right of termination during the probationary period may be exercised freely, the employer’s compliance with certain procedural rules helps prevent future disputes.
That said, even though there is no formal requirement for termination during the probationary period, written notification should be preferred for ease of proof. After the probationary period has expired, the employee may allege that the termination was unjustified or that the probationary period was not valid. In such a case, having a concrete document enables the employer to prove both the intention to terminate and the date of termination. Since no notice period applies during the probationary period, the employer may make the termination decision effective immediately; however, the date on which the notice reaches the employee determines the date on which the employment contract terminates. If written notice is issued on a day when the employee is not present at work, it should be delivered in accordance with proper notification procedures.
Is Notice of Termination Required During the Probationary Period?
A party terminating the employment contract during the probationary period is not required to comply with the notice periods regulated under Articles 17 and 18 of the Turkish Labor Code. Given the nature of the probationary period, the legislature accepts that the parties may terminate the contract without granting any additional period. Once the employer communicates the dismissal decision to the employee during the probationary period, the employment relationship ends; the employee does not become entitled to notice pay or severance pay. The purpose of the probationary period is to allow the employee to test the suitability of the job and the employer to test the suitability of the employee. For this reason, termination is, as a rule, effective immediately.
The Court of Cassation consistently emphasizes that there is no obligation to pay notice compensation during the probationary period. When an employee is dismissed during the probationary period, the employee cannot separately request that a notice period be granted or that compensation corresponding to such period be paid. However, if the employer gives written notice of termination and expressly states in the notice that the contract is being terminated during the probationary period, evidentiary issues are less likely to arise later. The employer may deliver the termination notice to the employee in person or send it by registered mail; the date on which the notice reaches the employee is the date on which the employment contract terminates. After receiving the termination notice, the employee has no obligation to return to the workplace, and the employer also loses the right to require the employee to continue working. In practice, employers usually notify the employee of the termination decision on the same day and have the employee leave the workplace; in such cases, the employee’s wages for the period worked up to that date must be paid in full.
Form and Content of the Termination Notice
The Labor Code does not prescribe any formal requirement for terminations made during the probationary period. The termination notice may be given orally or in writing. However, oral termination statements may create evidentiary problems. In particular, if the employee later claims that the probationary period was invalid or had already expired, the employer must have concrete evidence.
In practice, employers are advised to issue a written termination notice and to clearly record that the termination was made during the probationary period, even if no reason for termination is stated. It is sufficient to use wording such as “our employment relationship has ended as of today during the probationary period due to the lack of mutual alignment” or “our employment relationship has ended as of today during the probationary period.” Having the employee sign this document, or at least acknowledge receipt, reduces the employer’s evidentiary burden. Written notice also documents the date on which the probationary period ended; the employee cannot later claim that the probationary period was extended or that they continued working after the period had expired.
Dismissal After the Probationary Period Has Expired
Once the probationary period expires, the employment relationship becomes subject to the general provisions of the Turkish Labor Code. From that point onward, if the employer wishes to dismiss the employee, the employer must rely on a just cause or a valid reason; the right of arbitrary termination no longer exists. In other words, after the probationary period has ended, the employer no longer has the freedom of termination available during the probationary period. To terminate the employment contract, there must be a valid reason under Article 18 of the Turkish Labor Code or a just cause under Article 25. Job security provisions also apply to employees whose probationary period has expired; however, for these provisions to apply, the workplace must employ at least thirty employees, and the employee must have completed at least six months of service.
Dismissal after the probationary period has expired gives rise to notice period and severance pay obligations. Before terminating the employee, the employer must either observe the statutory notice period determined according to the employee’s length of service or pay notice compensation corresponding to that period. In addition, if the employee has at least one year of service and the termination is not based on a just cause attributable to the employee, the employee becomes entitled to severance pay. If the employer’s termination decision is not based on a valid reason or just cause, the employee may file a reinstatement lawsuit under job security provisions or claim bad-faith termination compensation. In practice, employees dismissed immediately after the probationary period expires may characterize this as an abuse of right and claim compensation.
Rights That Change Upon Expiration of the Probationary Period
Once the probationary period expires, the employee begins to fully benefit from the protections provided under the Turkish Labor Code. The right to a notice period arises as of the end of the probationary period; when terminating the employee, the employer must either grant the notice period determined according to the employee’s length of service or pay the corresponding amount in advance. Under Article 17 of the Turkish Labor Code, notice periods are determined based on the employee’s seniority. Accordingly, a two-week notice period applies to employees with less than six months of service; four weeks for employees with six months to one and a half years of service; six weeks for employees with one and a half to three years of service; and eight weeks for employees with more than three years of service. When calculating the seniority of an employee whose probationary period has expired, the time spent during the probationary period is also taken into account. Therefore, for an employee whose total seniority is two months at the end of the probationary period, the applicable notice period will be two weeks.
The right to severance pay arises if the employee has completed one year of service and the termination is not made by the employee without just cause. An employee whose probationary period has expired calculates their total period of employment by including the probationary period; once they complete one year, they become entitled to severance pay. If the employer terminates the employee after the probationary period, the employer is required to pay this compensation; otherwise, the employee may claim severance pay through litigation. Job security provisions apply if the workplace employs at least thirty employees and the employee has completed six months of service. If the employer terminates the employee without showing a valid reason, the employee may file a reinstatement lawsuit.
Upon expiration of the probationary period, the employee’s right to annual leave also becomes definitive. The employee becomes entitled to annual leave once they complete one year of employment; the days spent during the probationary period are included in this period. Even if the employee leaves employment after the probationary period, the employee may request that the total days worked within the one-year service period be included in the annual leave calculation. If the employer dismisses the employee without allowing them to use their annual leave entitlement, the employer is required to pay the wage corresponding to the unused leave days.
Post-Probation Termination Procedure
After the probationary period expires, the employer must show a valid reason or just cause when seeking to terminate the employee. A valid reason refers to termination grounds arising from the employee’s capacity or conduct, or from the requirements of the business; just cause refers to serious circumstances that allow immediate termination and eliminate the need for a notice period. When the employer terminates the employment contract for a valid reason, the employer must issue the termination notice in writing and clearly state the reason for termination pursuant to Article 18 of the Turkish Labor Code. If no written notice is given, or if no reason for termination is stated, the employee may file a reinstatement lawsuit.
In cases of termination for just cause, the employer may immediately dismiss the employee under the circumstances listed in Article 25 of the Turkish Labor Code; in such case, there is no need to grant a notice period or pay notice compensation. However, the notice of termination for just cause should also be issued in writing and the reason for termination should be clearly stated. The employer must exercise the right of termination within six business days from the date on which it became aware of the event constituting just cause, and in any event within one year from the occurrence of the event; otherwise, the right of termination is forfeited. The employee may file a lawsuit alleging that no just cause occurred or that the employer failed to terminate within the statutory period.
The Employer’s Termination Authority and Its Limits
After the probationary period expires, the employer’s authority to terminate is no longer open to arbitrary use. When dismissing an employee, the employer must comply with the constitutional principle of equality and the prohibition of discrimination; the employer may not dismiss an employee on discriminatory grounds such as religion, language, race, gender, political opinion, philosophical belief, union membership, or similar reasons. A termination that violates the prohibition of discrimination gives the employee the right to file a reinstatement lawsuit; the employee may also claim discrimination compensation under Article 5 of the Turkish Labor Code. When making a termination decision, the employer must respect the employee’s personal rights and comply with the principle of proportionality; otherwise, the employee may file a claim for non-pecuniary damages due to violation of personal rights.
The prohibition on abuse of rights also applies to termination decisions made after the probationary period has expired. If the employer dismisses the employee immediately after the probationary period ends, and the termination is made to prevent the employee from benefiting from rights arising after the probationary period, this may be considered an abuse of rights. For example, if the employer keeps the employee employed during the probationary period by stating that the employee’s performance is satisfactory, but dismisses the employee on the day the probationary period ends without showing a valid reason, the employee may claim that the termination was made in bad faith and seek bad-faith termination compensation. If the Court of Cassation determines in such cases that the employer’s real purpose was to avoid paying severance and notice compensation, it may rule that the termination is invalid.
The employer’s termination authority is limited to objective grounds such as business requirements or the employee’s inadequacy. The employer cannot dismiss an employee whose probationary period has ended merely based on personal preference; the reason for termination must be concrete and provable. For employees covered by job security provisions, the employer’s burden of proof is heavier; the employer must prove before the court that the termination was based on a valid reason. Otherwise, the employee may obtain a reinstatement decision, and the employer may be required either to reinstate the employee or pay compensation in the amount of four to eight months’ gross wages.
Employee Rights in the Event of Unlawful Termination
If the employer carries out an unlawful termination after the probationary period has expired, the employee may pursue more than one legal remedy. First, the employee has the right to file a reinstatement lawsuit; this lawsuit may be filed if the workplace employs at least thirty employees and the employee has completed six months of service. A reinstatement claim is initiated by applying to mandatory mediation within one month from the date of termination; if the mediation process is concluded without settlement, the employee must file the lawsuit before the labor court within two weeks. If the court rules in favor of the employee in the reinstatement lawsuit, the employer must reinstate the employee within one month or, if the employer does not reinstate the employee, pay compensation in the amount of four to eight months’ gross wages.
The employee may also claim bad-faith termination compensation. If the employee alleges that the employer terminated the contract immediately after the probationary period or for a specific improper purpose, and that the termination was made in bad faith, the employee may file a lawsuit for bad-faith termination compensation. The fact that the employer terminates the employee precisely when new rights arise after the probationary period is often considered an indication of bad faith.
If there is an allegation of discrimination, the employee may claim discrimination compensation in the amount of four months’ gross wages pursuant to Article 5 of the Turkish Labor Code. If the employee alleges that the termination was based on union membership, gender, pregnancy, race, or similar grounds, the employee has the right to claim this compensation. In a discrimination compensation lawsuit, the burden of proof rests with the employer; if the employee presents strong indications that the termination was based on a discriminatory reason, the employer must prove that the termination was not discriminatory.
Key Points to Consider When Implementing a Probationary Period in the Workplace
For a probationary period to be implemented in compliance with the law, the employer must observe certain fundamental rules. First, the probationary period must be expressly stated in the employment contract. The contract should clearly specify the existence and duration of the probationary period, as well as the parties’ right of termination during that period. An oral agreement or workplace practice does not make a probationary period valid. Both the employee and the employer should clearly know the start and end dates of the probationary period. Uncertainty gives rise to disputes and prevents the employer from relying on the probationary period as a basis for termination.
The employer is required to register the employee with the Social Security Institution even during the probationary period. The employment commencement notification must be made before the employee starts work or, at the latest, on the same day. Failure to file the SSI notification during the probationary period may result in administrative fines and late payment surcharges. If the employee is not insured, the employer may be held liable for any losses suffered by the employee. In practice, some employers tend not to register employees during the probationary period; this approach is both unlawful and carries administrative, criminal, and civil risks.
During the probationary period, the employee’s rights to wages, overtime pay, public holiday pay, and annual leave remain in effect. The employer must pay the employee the wage agreed in the contract in full and must pay overtime for work exceeding forty-five hours per week. The probationary period does not eliminate the employee’s statutory rights. The employee may claim all receivables for the days worked at the end of the probationary period or upon termination. Using the probationary period to restrict the employee’s rights is considered bad faith and may give rise to compensation liability.
If the employer decides to retain the employee permanently at the end of the probationary period, the employer should inform the employee and, where necessary, execute a new contract. If the parties remain silent and the employee continues working after the probationary period has expired, the contract becomes an indefinite-term employment contract. From that point onward, the employer can no longer terminate the contract by relying on the probationary period. Terminations made after the probationary period are subject to the general provisions of the Turkish Labor Code, and the employee may claim notice pay, severance pay, and other statutory entitlements.
Frequently Asked Questions
Conclusion
Dismissal during the probationary period is subject to special rules for both the employer and the employee. During the probationary period, the employer may terminate the contract without stating a reason and without paying notice compensation; however, this right must not be abused, and the employer must not act in a discriminatory manner or violate the employee’s statutory rights. The employee also has the right to terminate the contract during the probationary period and may claim wages, overtime pay, and leave-related receivables for the days worked.
Clearly including the probationary period in the employment contract, making the required Social Security Institution registration, and ensuring that both parties understand their mutual rights help prevent disputes. The employer should use the probationary period in compliance with the law, while the employee should follow the process with an awareness of their rights. If the probationary period is not properly managed, the employer may face compensation liability, and the employee may suffer a loss of rights.
For this reason, early legal assessment and careful management of the process from the outset are in the interest of both parties. Disputes arising during the probationary period are often brought before the courts based on the legality of termination, discrimination, or bad-faith allegations. Therefore, it is important for the parties to contact an employment lawyer in Turkey, obtain legal support, and properly document the process. For legal assistance regarding issues arising during or at the end of the probationary period, you may contact us at info@paldimoglu.av.tr.
