One of the most important purposes of labor law is to protect the relationship between an employee and an employer and to secure an employee's job. In order to achieve this purpose, an internationally accepted "job security" concept was born in early 20th century1. The purpose of job security is to protect the employee, the weaker party in an employment relationship, against the employer. In a broad sense, job security means the protection of an employee after the termination of his/her employment agreement by the employer. In a stricter sense, job security means:
- employer's obligation to rely on a valid reason or a just cause in terminating the employee's employment agreement;
- employee's ability to file a lawsuit after termination;
- burden of proof placed on the employer; and
- legal consequences in the absence of any valid reason or just cause in termination.
Aside from ratifying the Termination of Employment Convention no. 158 (International Labor Organization - ILO) and United Nations - Declaration of Human Rights, the concept of job security is also guaranteed under the Labor Law2 in Turkey.
I. Scope of Job Security
Job security is governed by Articles 18 – 21 of the Labor Law. To benefit from these provisions, one must be subject to the Labor Law and fulfill the conditions set forth under Article 183, as follows:
- The terminated employment agreement must have been for an indefinite term.
- The employment agreement must have been terminated by the employer.
- There must be at least 30 employees working in the same work place.4
- The employee must have at least six months of seniority.
- The employee must not be one of the employer's representatives.5
- The termination must be unlawful (i.e. not based on a valid reason or just cause6).
Under the concept of job security, an employment agreement must be terminated either with valid reason or just cause, in order for the termination to be lawful. Under Article 18 of the Labor Law, the employer must rely on a valid reason, arising from the employee's adequacy or behavior, or necessities of the undertaking, work place or the work itself, in order for the termination to be valid. An employee's incapability to carry his/her job is considered a valid reason arising from that employee's adequacy. This incapability can be physical or professional. The most common forms of physical incapability are the employee's sickness, age and retirement; and the forms of professional incapability are inefficiency and low performance.
Valid reasons for termination of employment are not listed in the Labor Law. Article 18 lists examples of what cannot be deemed a valid reason. Although the Labor Law does not stipulate clearly what is and what is not a valid reason for termination, the Court of Appeals precedent sets a clear path regarding the issue. The decision of the 9th Civil Chamber of the Court of Appeals dated 31 January 2005 states the following:7
Article 25 of the Labor Law lists the just causes for the employer to terminate the employment agreement. Just causes are categorized as health issues, situations contrary to moral rules and good faith, acts of God and employee's absence exceeding the notification period stipulated under Article 17 due to detention or arrest. It is worth emphasizing that only if the employment agreement is terminated based on situations contrary to moral rules and good faith, the employee would be not entitled to severance pay and notice period compensation.
Principle of Ultima Ratio
One of the most important issues for employers to consider is that termination of the employment agreement must be the last resort, even with the existence of a valid reason. If there is another option (e.g. vocational training) other than termination, this option must be tried first. Although this principle is not stipulated under the Labor Law, the Court of Appeals accepts it without exception. The decision of the 9th Civil Chamber of the Court of Appeals dated 10 January 2005 states that:8
II. Termination Procedure
Under Article 19 of the Labor Law, a termination notice must be sent to the employee. In this notice, the reason or reasons for termination must be explicitly indicated. If the reason arises from the employee's behavior or adequacy, the employee must be given a chance to defend himself/herself. The important thing here is that the employer is not required to obtain the employee's defense but must give the employee a chance to defend himself/herself. It is worth emphasizing that in the event of termination with just cause, the employer is not even required to give the employee the chance to defend himself. Although it is not obligatory, in any case it is safer to give the employee the chance to defend himself as this may be deemed a requirement during litigation in case the judge decides to consider the cause as valid reason instead of a just cause. On another note, the employer must comply with the notice periods stipulated under the Labor Law for terminating the employment agreement based on valid reason.
To follow the termination procedure stipulated under the Labor Law is as important as the reasons of termination. If the termination procedure is not properly followed, the termination will be deemed unlawful, even if it is done with a valid reason.
III. Consequence of Unlawful Termination / Re-employment Lawsuit
Under Article 20 of the Labor Law, if an indefinite term employment agreement is terminated without indicating any valid reason, or the reason indicated in the termination notice is not a valid reason, the employee is entitled to request his/her re-employment by filing a lawsuit in the labor court or applying to an arbitrator in the event it is envisaged under the employment agreement, within a defined period of time. The re-employment lawsuit must be filed within one month following the date of service of the termination notice. If the employee does not file the lawsuit within one month, the termination will be deemed lawful.9 In a re-employment lawsuit, the burden of proof is on the employer, which means the that employer must prove that the termination was based on a valid reason or a just cause.
The one month duration is a definite term for a re-employment lawsuit and is not the statute of limitation. Therefore, it is taken into account ex officio by the court. In its decision dated 21 May 2005, the 9th Civil Chamber of the Court of Appeals stated that:10
After the Lawsuit
Under Article 21 of the Labor Law, if the court accepts the re-employment request (i.e. decides that the termination was unlawful), the employee must apply to the employer within ten days following the service of the finalized decision. On the other hand, the employer must reinstate the employee within one month after his/her application. This invitation must be sincere and unconditional. Otherwise, the employer will have to pay compensation.
If the employee is re-employed, the severance pay and the notice period compensation paid at the time of termination must be reimbursed by the employee. If the employee is not re-employed, the employer must pay job security compensation (from four months wages to eight months wages, based on the court's discretion). This compensation is also called non-re-employment compensation. If severance pay and notice period compensation were not paid at the time of termination, they must be paid as well. In any case, he/she must be compensated with up to four months wages for the time the employee was unemployed.
Termination due to Union Affiliation
Under Article 30 of Unions and Collective Employment Agreement Law11 ("Union Law"), in the event of termination due to the employee's affiliation with a labor union, the employee may file a re-employment lawsuit in accordance with Articles 18, 20 and 21 of the Labor Law. The employee is entitled to union compensation instead of job security compensation, regardless of whether or not he/she is re-employed. The amount of this compensation is at least 12 months wages of the employee.
1 Termination of Employment Convention no. 158 (International Labor Organization), United Nations-Declaration of Human Rights and European Union Charter of Fundamental Rights all stipulates job security provisions.
2 Numbered 4857
3 Under Article 6 of Law No. 5953 (commonly known as Press Labor Law) and Article 116 of the Labor Law, the relationships between journalists and their employers are also subject to job security provisions.
4 This provision may be changed in favor of the employee. The number of employees can be reduced or this condition can be completely abolished (9th Chamber of the Court of Appeals dated 26 May 2005, numbered 2005/12317 E., 2005/19404 K.).
5 The employer's representatives and vice representatives, who control the whole business and who control both the whole work place and have the authority to hire and fire employees, cannot benefit from the job security provisions.
6 Last paragraph of Article 25 refers to Article 18 – 20 and 21 in the event of termination in the absence of just cause.
7 9th Chamber of the Court of Appeals dated 31 January 2005, numbered 2005/304 E., 2005/2720 K.
8 9th Chamber of the Court of Appeals dated 10 January 2005, numbered 2004/23993 E., 2005/408 K.
9 If the termination is based on just cause, severance pay and notice period compensation cannot be claimed. If it is based on valid reason, they must be paid.
10 9th Chamber of the Court of Appeals dated 21 May 2005, numbered 2005/1765 E., 2005/5836 K.
11 Numbered 6356
© Kolcuoğlu Demirkan Attorneys at Law, 2013