Turkey: Collective Dismissal Of Employees Under Turkish Law

Last Updated: 9 November 2015
Article by Fatih Işık

Introduction

The collective dismissal of employees is regulated under Art. 29 of the Labor Act numbered 4857 ("Act"). There are certain criteria to be met in order for a given lay-off to be identified as collective dismissal under Turkish Law.

The subject matter of this article will be the definition of collective dismissal, the employer's obligations, and the sanctions applicable concerning breaches of collective dismissal rules.

Definition

Art. 29 of the Act defines collective dismissals in quantitative and qualitative terms that must be collectively present for a given lay-off to be deemed as a collective dismissal. Art. 29 (1) describes the qualitative measure as "...collective terminations for reasons of an economic, technological, structural or similar nature necessitated by the requirements of the enterprise, the establishment or activity..."

In a quantitative dismissal, an employer shall dismiss a certain number of employees specified in the said provision in order to be subject to collective dismissal rules: (i) a minimum of 10 employees for workplaces where 20 and 100 employees are employed, (ii) at least 10% of the employees for workplaces where 101 and 300 employees are employed, (iii) a minimum of 30 employees for the workplaces where 301 or more employees are employed.

It must be noted that even though the employees may be dismissed on the same date or on different dates, all dismissals must be affected within one month. Moreover, as can be observed from the numbers provided by the Act, the collective dismissal rules apply only if there are at least 20 employees within the workplace.

Obligations of the Employer

The employer intending the collective dismissal of employees has additional obligations to those which arise in the termination of individual employment contracts.

Obligation to Notify the Contemplated Collective Dismissal to Relevant Authorities: In accordance with Art. 29 (1) of the Act, the employer shall deliver its notification of its intention to collectively dismiss its employees, in writing, to the workplace labor union representatives, the relevant regional directorate of the Ministry of Labor and Social Security (Çalışma ve Sosyal Güvenlik Bakanlığı), and the Turkish Employment Organization (Türkiye İş Kurumu - İŞKUR) 30 days prior to such dismissal. Such written notification shall include the reason for the contemplated lay-off, the number of persons and groups to be affected by the lay-off, as well as its timing.

Obligation to Notify the Employees of Termination of Employment Contract: Apart from the notifications to be made to the above-mentioned persons and bodies, pursuant to Art. 17 of the Act, the employer is required to provide separate notices to each of the employees whose labor contract will be terminated. This "notice of termination" will include the notice periods applicable to each employee. It must be emphasized that notices of termination served upon the employees shall be effective 30 (thirty) days after written notification is given to the relevant regional directorate of the Ministry of Labor and Social Security as per Art. 29 (1) of the Act. In other words, the notice periods granted to the employees for termination specified under Art. 17 of the Act shall start only after the said 30-day period expires. Once the 30-day period expires, the employer may choose to wait for the expiry of the notice period applicable to a given employee, or it may choose to compensate the employee (notice pay), in lieu of a notice period, together with the notice of termination and, therefore, terminate the employment contract with immediate effect.

Obligation to Hold a Meeting with Labor Union Representatives: As per Art. 29 (4) of the Act, the employer shall hold a consultative meeting with the workplace labor union representatives, if any. The measures to be taken to avert or to reduce the layoffs, as well as measures to mitigate or minimize their adverse effects on the concerned employees are the subject matters of this meeting. Pursuant to the last sentence of Art. 29 (4) of the Act, minutes of this meeting confirming that the said consultations have been held shall be drawn up at the conclusion of the meeting.

Obligation to Notify the Closure of a Workplace: If the collective dismissal of employees is due to the closure of the workplace, which means a definite and permanent ceasing of activities, the employer shall solely notify the relevant regional directorate of the Ministry of Labor and Social Security and Turkish Employment Organization 30 days prior to the closure, pursuant to Art. 29 (6) of the Act. In this case, there is no obligation of the employer to notify the labor union representatives or to conduct a consultative meeting of the impending collective dismissal.

As per Art. 29 of the Act, if the employer wishes to hire persons for positions of the same nature within six months from the finalization of the collective dismissal, the employer must initially offer the position to his former employees who have the relevant qualifications.

Sanction for the Breach of Obligations

In accordance with Art. 100 of the Act, the employer who dismisses employees contrary to its obligations arising from Art. 29 of the Act shall be liable for an administrative fine for each employee whose labor contract was unlawfully terminated. In accordance with the chart provided by the Ministry of Labor and Social Security in relation to the applicable labor law administrative fines, the said fine is TL 554 per employee for 2015.

At this point, one may claim that the employer is not obliged to respect Art. 29 of the Act, provided that it pays the administrative fine. This is controversial in the doctrine. One of the experts considers such terminations to be null and void, by claiming that stipulating only an administrative fine does not rule out legal sanctions that are applicable to an unlawful act[1]. The precedents of the Court of Cassation vary on this issue. In one of its judgments, the Court rejected the view that the collective dismissals violating Art. 29 of the Act are null and void, by stating that "...the sanction for the violation of the rules concerning collective dismissals is the administrative monetary fine..."[2]. Another judgment of the Court accepted that along with the administrative sanctions, the termination of the labor contracts of the employees who were subject to collective dismissal shall be deemed as null and void: "... The fact that the violation of the collective dismissal rules is sanctioned by administrative monetary fines does not mean that the terminations are valid..."[3]. Therefore, in the event that a collective dismissal does not fulfill the obligations set under Art. 29 of the Act, it may be argued that the terminations are null and void, and that the employer must pay the administrative fine.

Conclusion

In the light of the foregoing, it may be concluded that (i) in order for a lay-off to be considered as a collective dismissal, the qualitative and quantitative conditions that are specified under Art. 29 of the Act must be met; (ii) the employer who intends to collectively lay-off its employees in line with Art. 29 of the Act must notify the relevant authorities and the employees of the collective dismissal. The notice periods for employees commence following the expiry of 30 days as of the notification of the collective dismissal to the relevant authorities. (iii) the obligation of the employer to make payments that the employee is entitled to due to the termination of its employment contract remains valid; (iv) administrative monetary fines apply for each employee who was dismissed in breach of Art. 29 of the Act. However, payment of these administrative fines does not necessarily deem the collective dismissal as valid. In the event that the obligations are not fulfilled, the termination may be deemed to be null and void in addition to the payment of the administrative fine

Footnotes

1 Sarper Süzek, Labor Law, Istanbul 2013, pg. 621.

2 Court of Cassation 9th Civil Chamber Decision dated 26.01.2004 and numbered 1320/1174 (www.kazanci.com).

3 Court of Cassation 9th Civil Chamber Decision dated 19.10.2009 and numbered 37726/27756 (Süzek, p. 621-622).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions