The purpose and legal scope of the defence
The defence allows the employee to explain the event the employer relies on and allows the counter-evidence to be assessed. A performance shortfall, a disciplinary incident or a customer complaint may be different from how it first appears. A change of duties, inadequate training, health, workload, a lack of equipment and a supervisor's instruction can all affect the nature of the event.
The provision in Labor Law Article 19 must be assessed within the framework of its link to job security, its field of application and the termination of an indefinite-term contract for reasons of conduct or efficiency. It cannot be applied mechanically in the same way to an economic reason arising from the workplace, the expiry of the contract term, or a justified cause under Article 25/II. Conversely, if an employment contract or collective agreement provides a defence and disciplinary board safeguard beyond the statute, these are also examined. [K01]
The justified-cause exception is not a right to skip the inquiry
Article 19 preserves the employer's right to terminate in accordance with the conditions of Article 25/II. This exception does not allow the defence safeguard to be bypassed by labelling every event as a "justified cause". Whether the event truly falls within that sub-paragraph, and whether the employer's evidence is sufficient, must be assessed.
Obtaining an explanation can prevent a wrong decision even in an event for which it is not statutorily mandatory within the same scope. Explanations such as an excuse for absence, an equipment failure in a damage incident, or a work safety risk in a failure to follow an instruction can change the legal characterisation. The employee's response should be examined for its content, not merely for whether it bears a signature.
What should the defence request letter contain?
The specific event, date and allegation
The employee must be told clearly which event they are being asked about. The date, place, the duty or transaction concerned and the matter on which an explanation is expected are stated. Abstract expressions such as "you are undisciplined", "your performance is inadequate" or "you do not fit the company culture" are not always suitable for preparing a response.
In a hypothetical sales-performance file, instead of simply stating that the target was not met, the relevant period, the target alleged to have been communicated, the achievement data and the conduct under examination should be set out. If there are several events, each must be distinguished. The request letter must not turn into a text that declares the employee definitively guilty before any decision has been made.
The opportunity to respond and submit evidence
The employee must know through which channel and to whom to submit the explanation, the deadline and, if any, the place of the meeting. They must be able to submit written documents, name witnesses or request that a relevant record be examined. The employer is not obliged to share all third-party data without limit; however, an account so abstract that the employee cannot understand the allegation made against them should not be regarded as sufficient either.
The language of the document must be understandable to the employee. Having a person with reading or language difficulties merely sign does not in every case show that a meaningful opportunity to defend was provided. The necessary explanation and means of communication must be provided according to the nature of the event.
The outcome must not be fixed in advance
The request must show that the process will be assessed in line with the employee's explanation. The sequence "your employment contract has been terminated, give your defence" is not the same as a pre-termination defence. The stages of preparing, approving and notifying the termination decision should be distinguishable from one another in the file.
How many days should be given for the defence?
Law No. 4857 does not set a single two-, three- or seven-day period applicable to all employee defences. It is not correct to carry over to employees the defence period specific to civil servants. The provisions of the employment contract or collective agreement, the scope of the event and the employee's ability to prepare an explanation are assessed together. [K01]
A simple event observed at once and an event involving many financial transactions or long-term performance records do not require the same preparation time. Whether the employee is on leave, ill or unable to access documents must also be taken into account. A short period cannot be justified solely by the employer's wish to close the file quickly.
A same-day response does not always lead to the same result
It cannot be said that a defence given on the same day is necessarily invalid, or that requesting a response on the same day is always sufficient. The employee's understanding of the allegation, the need for preparation, the possibility of access and the actual sequence of the steps are examined. A formality in front of a ready-made termination decision, where the response will not be assessed in any way, is not a sufficient opportunity to defend.
In its decision of 07.02.2023, E.2022/18804, K.2023/1615, the 9th Civil Chamber of the Court of Cassation (Yargıtay 9. Hukuk Dairesi), in a dispute over a termination for performance, upheld the reinstatement outcome, taking into account the lower courts' assessment of the defence process as well as the failure to prove a valid reason. The decision shows that merely collecting a form is not sufficient; it does not lay down a fixed defence period usable in all events. [D03]
A request for an extension
The employee may explain why additional time is needed. The employer should assess the request together with access to the necessary documents and the urgency of the event. It is useful to record the reason for acceptance or refusal. This institutional recommendation does not mean that the period extends indefinitely at each request of the employee. If a termination within the scope of Article 26 is a possibility, the preclusive period must also be tracked at the same time.
Notification, refusal to sign and failure to respond
How is refusal to sign recorded?
The fact that the request letter was presented to the employee, how its content or delivery was communicated, and by what conduct the employee avoided signing can be established by a truthful report. The report should include those present and what was directly observed. If the employee took the document but stated that they did not accept its content, the signature of receipt and acceptance of the allegation should not be confused.
The written and electronic notification rules of Labor Law Article 109 are taken into account. The conditions for using a registered electronic mail (KEP) address with the employee's written consent are not the same as for ordinary e-mail or messaging. The written form of a notice that produces the effect of termination is separately protected. The employer should retain the delivery record of the channel used. [K08]
Failing to respond is not an admission
If the employee has not responded although a proper opportunity was given, this can be recorded and an assessment can be made on the existing evidence. However, silence is not an automatic acceptance that all the alleged events are true. The employer's burden of proving the reason for termination does not disappear of its own accord. [K01]
That a response did not arrive does not always show that the employee never sent it. Claims such as a wrong e-mail address, a system problem, delivery to an authorised person or illness should be investigated. An employer's reliance solely on a gap in its own record system does not make the real evidence outside it irrelevant.
How should the defence be assessed?
| The employee's explanation | The counterpart to examine |
|---|---|
| The duty or target was not communicated. | The contract, job description, target notification and training |
| I took leave or my shift changed. | Authorised approval, messages and the actual shift |
| The system or equipment was faulty. | Technical record, maintenance record and other users' information |
| There was a health or safety risk. | The necessary report and the occupational health and safety assessment |
| The data are wrong or incomplete. | Accuracy of the source, the period and the calculation method |
| Other employees were treated differently. | Comparable events and consistent practice |
An assessment that rejects the defence is not a court judgment obliged to answer every detail of the response at length. However, it should be understandable why substantive explanations capable of affecting the outcome were not accepted. If there is a document that contradicts the administrative record, it should be corrected; where doubt has not been dispelled, the text should not be written as if a definitive conclusion had been reached.
Special care in a performance file
The objectivity of the performance criteria, their foreseeability, the conditions of the work, the situation of similar employees and the opportunities for development are important. Having obtained a defence does not replace these substantive examinations. Assessing a person who works with inadequate equipment, staff or training solely on the basis of a result target can lead to a wrong outcome. [D03]
The nature of the sanction in a disciplinary file
The seriousness of the event, the employee's duties, previous warnings, its effect on the workplace and whether a lighter measure would be suitable are addressed according to the file. The existence of a previous sanction for the same act is also taken into account. Converting an event for which a warning was given into a termination later, without any new fact, may create a separate legal risk. If there is a contractual disciplinary procedure, compliance with it should also be checked.
The relationship between the defence request and the termination period
The six-business-day period in Article 26 matters for a justified cause under Article 25/II. A defence request does not automatically stop the period; a second defence request does not by itself create a new starting point. It must be established concretely when the competent authority learned of the event sufficiently. [K01][D01]
The competent authority's knowledge and the actual inquiry
The person investigating the event and the authority competent to terminate may differ. The system of authority, the delivery of the report and what information was obtained when should be clear from the file. The majority opinion and the dissenting opinion in the 24.10.2024 decision of the 9th Civil Chamber of the Court of Cassation contain different assessments of the reasonable duration of the inquiry and the role of the board. For this reason, it cannot be assumed that every delay is safe merely because "the board has only just met". [D01]
The termination notice is prepared separately from the defence
If termination is decided as a result of the defence, it should be checked on which facts the final notice relies and whether it is consistent with the assessment of the defence. If an entirely new event that was not asked about in the defence is later to be made the ground, the effect of this change on procedure is examined. That a meeting was held with the employee does not remedy a deficiency in the form or delivery of the termination notice.
Record security and personal data
Defence files may contain information about health, trade-union membership, family, criminal allegations or third parties. Access should be limited to people who need it for their duties and the file should not be sent to general company messaging groups. The current processing conditions of Article 6 of the Personal Data Protection Law (KVKK) and the other data protection principles apply together with the need to collect evidence. [K07]
Secretly recording a meeting, opening a personal account without permission or examining an employee's device without limit are not recommended standard methods. Whether evidence has been obtained lawfully is a separate issue. If a record of the meeting is to be kept, the relevant legislation, the notice to the employee, necessity and the access conditions should be assessed in advance. The employee's response should be preserved in its original copy in a form that cannot be altered afterwards.
The order of steps in practice
The event is first established; its scope, evidence and competence are determined. A clear request is sent to the employee, a genuine opportunity to respond is given, and the explanation and counter-evidence received are assessed. Then the options of closing the matter, further investigation, another suitable measure or termination are addressed. The date of each stage is tracked together with Article 26 and any contractual periods.
The employee's signing of the defence does not mean that they cannot bring an action in the future or that they have waived all employment claims. Adding a release (ibraname) or a resignation sentence to the defence record makes different legal acts unclear in a single document. Resignation, termination by mutual agreement (ikale) and release, if any, must be examined under their own conditions. [K04]
Content and procedural standard for the defence request letter
A defence request is not putting a general "give an explanation" form in front of the employee. What the allegation is, which event and date it is based on, which records have been assessed and by when the employee may respond must be shown in an understandable way. A vague allegation may prevent the employee from exercising a genuine right to respond. [K01][D03]
| Element | What the letter should contain | What to avoid |
|---|---|---|
| Event | Date, place, duty and the specific conduct | A general expression such as "you behaved inappropriately" |
| Supporting record | The report or finding information to the extent necessary for the employee to respond | Disclosing confidential third-party data unnecessarily |
| Time | A reasonable deadline according to the complexity of the event, and the method of delivery | A same-hour formality that fixes the outcome in advance |
| Rights | The opportunity to submit documents, name witnesses or notify an excuse | A threat that not giving a defence will automatically be treated as an admission |
| Notification | Date, recipient, signature or record of refusal to sign | A notification section left blank and filled in afterwards |
Special content in a performance file
In a performance ground, it is important that the target is known in advance, measurable and comparable with employees in the same position. The defence request should contain not only the result figure but also the assessment period, the support and training opportunities, previous feedback and the employee's explanation. The defence does not take the place of a genuine performance system.
A safe method in harassment, violence and health events
In a complaint file, the identity of the victim and witnesses should not be spread unnecessarily; interim measures that ensure safety should be kept separate from the final disciplinary decision. In events involving health data, the information necessary for carrying out the work should be used instead of the details of the diagnosis. The defence request should not be prepared in a way that forces the employee to disclose special categories of personal data to a wide circle. [K07]
Refusal to sign and electronic notification
When the employee does not sign the document, the situation can be recorded with date and time by persons who know the content of the document; however, the report must show that the document was actually presented. If e-mail, KEP or a company system is used, who owns the account, the sending and access record and the method accepted in the workplace are assessed together. An ordinary messaging application does not in every case replace official notification or KEP. [K08]
Preparing a decision note
After a defence has been obtained, one should not be content with the sentence "found inadequate". A link should be made between the allegation, the defence, the evidence, previous practice, proportionality and the sanction chosen. This note should be kept in the file in a form that prevents the reason in the termination notice from being changed afterwards and that shows who made the decision.
Conclusion
The value of a valid defence process lies not in the number of signatures but in the employee knowing what they are accused of, being able to submit an explanation, and that explanation genuinely being assessed before the decision. Form, substantive reason and time management must be built together. This approach prevents the employer from making a wrong decision while allowing the employee to explain themselves effectively against the decision that affects them.
Frequently Asked Questions
Is a defence mandatory in every dismissal?
No. The scope of Article 19, the exception in Article 25/II and any additional contractual safeguards are assessed together. [K01]
Must the employee always be given seven days?
There is no general period of this kind that applies to employees in all events. The scope of the event and the applicable contractual rules are what matter.
Can a defence be taken orally?
The statutory form and the specific dispute are examined separately; for the purposes of proof, a clear written request and a system of recorded responses is a safer institutional method.
Does an employee who does not respond admit the allegation?
No. If a proper opportunity has been given, the file can be assessed on the existing evidence; silence is not an automatic admission.
Is signing the defence request letter an admission of guilt?
A signature showing receipt is different from acceptance of the event. What matters is the content of the document and under which statement the signature was placed.
Can a defence be obtained after the termination notice has been given?
In an event where a pre-termination defence safeguard is required, obtaining a response afterwards as a formality does not of itself remedy the earlier deficiency. [K01]
Does obtaining a defence stop the six business days?
It does not stop them automatically. Learning of the event, authority and the investigation of the event are assessed together. [D01]
Does a performance form replace a defence?
Not every form serves the same function. It is examined which allegation the employee was given an opportunity to answer, at what stage, and whether the substantive reason has been proved. [D03]
Can a release sentence be added to the defence?
A defence and a release are different acts. A general waiver statement does not replace the conditions of Article 420 of the Turkish Code of Obligations (TBK). [K04]
Can the defence file be opened to everyone?
No. Access should be limited by duty and purpose, with regard to personal data and professional requirements. [K07]
Related Labor Law Guides
- Termination of the Employment Contract for Cause: Conditions, Notice, Proof and Consequences for Employees and Employers: Grounds for termination for cause for employees and employers, six business days, defence, notice, proof, compensation, mediation and routes of legal action.
- Termination for an Employee's Absence: Report, Excuse, Notice and Proof: A guide to statutory thresholds for unauthorised absence, counting business days, investigating the excuse, the report, the termination period, notice and proof.
- How Are the Six Business Days and One Year Calculated in Termination for Cause? Labor Law Article 26, Date of Knowledge and Competent Authority: The six-business-day and one-year preclusive period under Labor Law Article 26, date of knowledge, competent authority and calculation of the investigation period.
Sources
K01 — Labor Law No. 4857; in particular Articles 8, 11, 13, 15, 17–29, 32, 40–44, 53, 59, 74, 75 and 109, as amended by Laws No. 7555 and 7578. View the source.
D01 — Court of Cassation 9th Civil Chamber, E.2024/10547, K.2024/14444, 24.10.2024. The knowledge of the authority competent to terminate; the majority and dissenting opinions are assessed separately. The full text was examined through De Jure. View the source.
D03 — Court of Cassation 9th Civil Chamber, E.2022/18804, K.2023/1615, 07.02.2023. The opportunity to defend and proof of a valid reason based on performance. The full text was examined through De Jure. View the source.
K08 — Law No. 7555, Article 23; the amendment to Article 109 of Labor Law No. 4857: written notification, KEP with the employee's written consent and the special case of the termination notice. View the source.
K07 — Personal Data Protection Law No. 6698; Articles 4–7 and 9–12. The KVKK explanation on special categories of personal data; employment and occupational health and safety obligations under Article 6 as amended by Law No. 7499. View the source.
K04 — Turkish Code of Obligations No. 6098; in particular the provisions on the service contract, protection of personality, personal data and release (Articles 417, 419 and 420). View the source.