Article 21 of Labor Law numbered 4857 ("Labor Law") regulates terminations without valid reasons of labor contracts by employers and the consequences of such terminations. Practices concerning this article are shaped by the precedents of the Court of Cassation. These precedents, which are of great importance in legal practice, shall be analyzed in this article.
Pursuant to Art.18/1 of the Labor Law, the employer, who terminates the contract of an employee engaged for an indefinite period, who is employed in an establishment with thirty or more workers, and who meets a minimum working period of six months, must use a valid reason for such termination that is connected with the capacity or conduct of the employee, or be based on the operational requirements of the establishment or service. A recent amendment of the Labor Law has regulated that the minimum working period, as stated in the relevant article, would not be sought for those employees working in underground works.1
Pursuant to the first paragraph of Article 21 of the Labor Law, if the court or the arbitrator concludes that the termination of the labor contract is unjustified because no valid reason has been given, or the alleged reason is invalid, the employer must re-employ the worker within one month. If, upon the application of the employee, the employer does not re-employ the worker, compensation at not less than four months' wages of the employee, and not more than eight months' wages, shall be paid to the employee by the employer.
Pursuant to Art. 21/5 of the Labor Law, in order for the worker to be re-employed, the worker must apply to the employer within ten working days of the date upon which the finalized court decision was communicated to the employee. If the employee does not apply within the said period of time, his/her termination shall be deemed valid, in which case the employer shall be held liable only for legal consequences of a valid termination.
The qualification of the court decision determining the termination is invalid
Pursuant to Art. 21 of the Labor Law, the employee claiming that his/her termination is invalid initiates a re-employment lawsuit. The decision of the court to be given at the end of such lawsuit is, in line with the clear wording of Art. 21/1, a declaratory decision. When the wording of the law stating that "the court or the arbitrator declares that the termination is unjustified since no valid reason has been given" is taken into consideration, it is clear that this is a declaratory decision. One of the direct consequences of such qualification is that the relevant decision cannot be subject to enforcement proceedings based on a court decision2
At this point, the Labor Courts sometimes render decisions declaring that a termination is invalid, but also calculates the compensation to be granted in favor of the employee, and decides on the collection of any compensation amounts. However, the Court of Cassation reverses decisions that pertain to collection of job security compensation, and the calculation of four months' wages of the employee. For instance, the decision dated 11.09.2003 numbered 2003/14994 E. and 2003/14267 K. of the 9th Civil Chamber of the Court of Cassation emphasizes this point:
"However, the fact that the courts decide on claims pertaining to compensation and receivables in addition to re-employment claims is an obstacle for re-employment claims to be decided upon and finalized in accordance with timely hearing procedures within the time limits regulated by the legislator. The rights and receivables other than re-employment claims are subject to oral hearing procedures. Consequently, if claims pertaining to the rights of the employee, other than re-employment, are brought within the same lawsuit, these claims must be separated, and the proceedings will move forward, accordingly.
Principally, the fact that the employee brings forward claims of payment in lieu of notice and severance payment in a re-employment lawsuit is a contradiction. As a claim for re-employment is made due to invalid termination, compensation related to the consequences of termination cannot be claimed at the same time.
In the case at hand, the court erred in its ruling on payment in lieu of notice in addition to the re-employment of the employee."
Pursuant to the decision, above, in practice, an employee who is not re-employed upon determination of invalid termination is required to claim his/her receivables by initiating a new lawsuit. On the other hand, in practice, whether the employee requests his/her re-employment within the statutory limits, and whether said worker is re-employed by the employer or not are not definite at the time when the decision of the court is pronounced.3 Consequently, a decision pertaining to collection of compensation at that stage cannot be rendered.
The refusal of the employee to start to work
Pursuant to Art. 21/5 of the Labor Law, for the worker to be re-employed, the employee must make an application to the employer within ten working days of the date upon which the finalized court decision is communicated. If the employee does not apply within the said period of time, the termination shall be deemed valid, in which case the employer shall be held liable only for the legal consequences of such termination.
As clearly stated in the relevant provision, the application to the employer must be made within ten working days upon the notification of the finalized court decision.
If the employee does not commence work despite the re-employment invitation of the employer, then in that case, the manner in which the rights that are laid down under Art. 21 of the Labor Law would be affected is of great importance.
If the employee does not commence work despite a re-employment invitation that was duly made, the Court of Cassation considers this to be an act that upholds the termination. The 9th Civil Chamber of the Court of Cassation and the Assembly of Civil Chambers of the Court of Cassation have rendered various decisions in this respect.4
The aforementioned Court of Cassation practice is criticized by the doctrine. In accordance with this opinion, there is no legal provision that obliges an employee to accept the invitation of the employer to work with an employer who has terminated the labor contract without any valid reason. Additionally, even if the employee does not accept the re-employment invitation, a legal interest exists to request determination of the invalidity of the termination.5
In addition to this practice, the Court of Cassation seeks certain conditions concerning the intention of the employer to re-employ the worker. In one of its recent decisions, the Court of Cassation decided that the intention of re-employment of the employer should be realistic. In the relevant case, the fact that the employer required the employee to attend various educational programs, and declared that it would re-employ the worker on the condition that the employer was successful on his/her examination, the Court did not consider this to be an invitation to re-employ the employee.6
Additionally, again within the requirement for the intention to be realistic, the Court of Cassation stated that the presence of work conditions, and the date upon which to commence work according to the re-employment invitation, should also be considered in determining whether the intention of the employer in its invitation is realistic:7
"Not only the intention of the employee to commence work should be realistic, but also the declaration of the employer to re-employ the worker, should be serious and realistic. To this end, the employer should, while inviting the employee to re-employment, state where and how, and under which conditions the employee is to be re-employed. If the invitation does not contain information on the job to be given to the employee, the work place and the work conditions, the date to commence work, and the time period until the said date, it would be controversial whether the invitation of the employer is serious and realistic. The employer should firstly fulfill these conditions"
There are several issues to be taken into consideration in the application of Art. 21 of the Labor Law. Firstly, the decision to be pronounced at the end of the lawsuit pertaining to whether the determination of the termination is based on valid grounds is a declaratory decision. This implies that the employee should initiate another lawsuit in order to enforce the receivables arising from the fact that termination is invalid. Another interesting issue concerning this provision is that the Court of Cassation considers a refusal of the employee to commence work to be a factor which validates the termination. On the other hand, it should be emphasized that the invitation of the employer must be realistic.
Article of December 2014
1.This amendment is made by Art.2 of Law no. 6552 published in the Official Gazette dated 11.09.2014 and numbered 29116 (Reiterated).
2.Sarper Süzek, İş Hukuku, Yenilenmiş 9.Baskı, İstanbul 2013, p. 630 ("Süzek").
3.Süzek, p. 631.
4.Please see the decision dated 11.06.2007 and numbered 2007/15603 E., 2007/18639 K. of the 9th Civil Chamber of the Court of Cassation, decision dated 16.04.2014 and numbered 2013/22-1106 E., 2014/538 K. of the Assembly of Civil Chambers of the Court of Cassation. Source: www.kazanci.com.tr.
5.Süzek, p. 634.
6.Please see the decision dated 01.10.2014 and numbered 2013/22-1158 E., 2014/743 K. of the Assembly of Civil Chambers of the Court of Cassation. Source: www.kazanci.com.tr.
7.Please see the decision dated 17.06.2013 and numbered 2012/31511 E., 2013/18700 K. of the 9th Civil Chamber of the Court of Cassation. Source: www.kazanci.com.tr.
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