OBJECTIVE ASSESSMENT CRITERIA IN THE CONTEXT OF LABOUR LAW AND HUMAN RESOURCES OPERATIONS
Objective evaluation can be defined as a process of measuring the potential of the employee by evaluating the knowledge, skills, potential and work habits of the individual by comparing and measuring with predetermined standards, evaluating the performance of the employee, evaluating and measuring his/her behaviour, showing the extent to which he/she can perform the requirements of the job and his/her strengths and weaknesses related to his/her work. The purpose of this system is to increase the productivity of employees and job and job descriptions should be well defined in order to realise the process.
In the Labour Law No. 4857 (“LL”), “terminating the employment contract of the employee based on performance” is among the reasons for valid termination. Article 18 of the HR states that in workplaces employing thirty or more employees, the employer who terminates the indefinite-term employment contract of an employee with at least six months of seniority must be based on a valid reason arising from the employee’s competence or the requirements of the workplace or business.
The issues to be considered in the performance evaluation process determined by the Court of Cassation can be listed as follows
Respect for employees: In this context, employers should respect their employees and should not ignore ethical values during performance evaluation.
Being fair, objective and transparent during the evaluation: There should be no discrimination between employees during the evaluations; the principle of equality should be adhered to, employees in the same position should be subjected to the same standards and employees should be informed about this issue.
Appropriateness of the evaluation to the organisation and workplace: Employees should be subjected to a performance appraisal orientated towards the organisation they work for and should be evaluated within the framework of the criteria related to the requirements of their positions.
Performance standards are communicated to employees in advance and these standards are accessible to the employee: Employers should inform employees in advance of the evaluation they will make. Employees should also have access to the minimum standards of the evaluation they will be subjected to. For this purpose, employers should announce these standards to their employees.
The criteria to which the employee is subjected should be concrete and measurable: The criteria to be applied to employees should be within the framework of certain rules and in a way that does not damage the trust in the employer. In order for the relevant rules to fulfil the concrete and measurable criterion, it may be possible to announce them in common areas or to notify the employees at the time of recruitment and to have them sign a notification document.
The result of the appraisal should be notified to the employee and the employee should be given reasonable time to correct the poor performance: Since performance appraisal is a study to increase the performance of employees, to improve them and to make them aware of their deficiencies, the result of this study should be notified to the employees. Again, employees should be given a reasonable period of time to improve their performance
Providing training in relation to the employee’s poor performance: Objective evaluation is not only to detect poor performance, but also to eliminate this poor performance. For this reason, the necessary materials should be provided to the employee and the necessary trainings should be given to eliminate this low performance.
If the employment contract is to be terminated, the poor performance must be continuous: Employers should treat their employees fairly. It will not be appropriate to terminate the employment contract after a single poor performance, the poor performance must be continuous.
Taking the employee’s defence: Employees should be given the right of defence after the evaluation and the employment contract should not be terminated before the employees are heard. 9th HD., E. 2007/27584 K. 2008/5327 T. dated 18.3.2008 stated that “…in order to be objective in performance evaluation and to accept the valid reason, performance evaluation criteria should be determined in advance, notified to the employee, and these criteria should be taken as basis in the competencies such as knowledge, skills, experience required by the job, behaviours suitable for the workplace, and work and personal development goals expected from the employee. In other words, the quality of the employee, his/her behaviour and the goal he/she achieves in the end are important.” It has decided as follows.
Equal Wage Principle
In order to better understand the objective assessment criterion, it is necessary to explain the principle of equal remuneration. Pursuant to Article 5 of the HR and the Constitution’s principle of equality, employers must adopt the principle of equal pay. This system determines which employee should receive how much wage or raise based on the grades in the performance evaluations.
Although the Court of Cassation observes the principle of equality in its established jurisprudence, it decides that it is not contrary to the principle of equality for employees to be subject to the same salaries due to differences such as seniority, even if they do the same job. For example, in the decision of 22nd HD., E. 2017/37596 K. 2017/28185 T. dated 7.12.2017, “The fact that the wages of the employees working in the workplace and doing the same job differ depending on seniority cannot be considered as a violation of the principle of equality. Therefore, the claimant’s request for the determination of the plaintiff’s wages according to the precedent workers and the decision on different receivables is unjustified.”
Objective Evaluation
The employer should be objective when establishing the evaluation criteria. Accordingly, the criteria should not differ between employees, and each employee should be treated the same by establishing certain criteria. As a matter of fact, the 9th Court of Cassation, in its decision dated 28.04.2008, E.2007/33486, K.2008/10632, stated that “In order for the performance and productivity results of the employee to be the basis for a valid reason, objective criteria must be determined. The objective criterion should be applied as those who do the same job in that workplace should be subject to the same rules.” As we have emphasised above, if objective criteria are determined and published in common areas or notified to the personnel at the time of recruitment, just like job descriptions, both the criteria of being objective and being concrete and measurable will be met.
Specificity of the Evaluation to the Workplace
As explained above, the evaluation criteria must be appropriate to the workplace and job description. Employees should not be evaluated for matters for which they are not responsible. In the decision of the Court of Cassation, 22nd HD, E. 2015/17193 K. 2015/20705 T. 15.06.2015, “In order for the performance and productivity results of the employee to be the basis for a valid reason, objective criteria must be determined. Performance and productivity standards must be specific to the workplace.”
Taking the Defence of the Employee
According to Article 19 of the HR, which is regulated in accordance with Article 7 of Convention 158 of the International Labour Organization (“ILO”), the employment contract cannot be terminated without the employee’s defence. Although it is up to the will of the employee whether or not to exercise the right of defence, the employer is obliged to provide the necessary facilities for defence and to give reasonable time. Although the form of defence is not explicitly stated in the HR, it is appropriate to consider the purpose of the defence. In order for the defence to be functional, it must be taken before the termination and it must be taken close to the termination, not long before the termination. The employee’s defence and the reason for termination notified to the employee must be the same, and the employee must be given sufficient time to make a defence.
Conclusion
In conclusion; employers should comply with the criteria such as objectivity and measurability determined by the Court of Cassation when evaluating the performance of their employees, as well as providing employees with the right to defence after these evaluations and giving reasonable time to make a complete and healthy defence. If the employer terminates the contract if these conditions are not met, this termination will not be a justified termination and the employee will be entitled to compensation. For this reason, it is of utmost importance that there is an objective evaluation criterion within the Company, that the relevant criteria are communicated to the employees and that the process detailed above works correctly.
