The Turkish Constitutional Court ruled that a local court
breached a petitioner's right to fair trial by giving a
decision, in an employment termination case, without specifically
evaluating and discussing the petitioner's compensation claims
regarding gender discrimination. The court ruled that a retrial
should be held to eliminate the effects of the breach. The
Constitutional Court's decision was dated 5 November 2015 and
published in Official Gazette number 29612 on 2 February 2016.
In the case at hand, the petitioner filed a criminal complaint
asserting that her manager at a private company had insulted her.
The court upheld the complaint and imposed a judicial fine.
Two days after the criminal complaint, the petitioner's
employment contract was terminated for being incompatible with her
manager. The petitioner filed a reemployment lawsuit against her
The local court ruled in favour of her reemployment and the
Court of Appeals approved the local court's decision. The
employer chose to pay compensation to the petitioner, rather than
The petitioner filed another lawsuit against the employer, this
time claiming compensation on the basis that her employment was
terminated due to gender discrimination. She claimed the male
manager's insults had been determined by a court decision, yet
his employment had not been terminated while her employment had.
The petitioner argued that the sole reason for this was that she is
The local court dismissed the lawsuit and the decision was
approved by the Court of Appeal. The local court ruled that the
reemployment lawsuit already removed the action causing inequality
and the petitioner is not entitled to claim further compensation
based on the same action.
The petitioner filed an application to the Constitutional Court
requesting a retrial and claiming breaches of the equality
principle and right to fair trial.
The Constitutional Court rejected the claimed breach of equality
principle (Article 10 of the Constitution) on the grounds that:
The petitioner did not submit
evidence to prove the termination took place based on gender
It was not established how similar
the situations of the petitioner and her manager were
It was not proven whether the
employer's motives in terminating the petitioner's
employment was indeed gender discrimination.
The Constitutional Court accepted the petitioner's claim
regarding breach of her right to fair trial (Article 36 of the
Constitution). The Constitutional Court ruled that the local court
and the Court of Appeals:
Failed to evaluate and discuss the
petitioner's claims regarding termination of her employment
solely based on gender discrimination in terms of discrimination
Failed to establish whether the
employer indeed acted contrary to his equal treatment
Failed to consider the
petitioner's claims pointing to a specific law stipulating the
requirement to pay discrimination compensation independently from
other compensation (such as salaries and other deprived benefits)
and her claims as to not being reemployed despite the reemployment
judgment rendered in her favour.
Accordingly, the Constitutional Court held that, when the trial
process is evaluated as a whole, the petitioner's right to a
reasoned decision had been breached. The Constitutional Court ruled
that the local court should conduct a retrial should be held to
eliminate the effects of the breach.
The full text of the Constitutional Court's reasoned
decision can be found at this link (only available in Turkish).
Information first published in the
MA | Gazette, a fortnightly legal update newsletter produced by
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.
April 2015 saw the reshaping of family-friendly leave with the birth of Shared Parental Leave (SPL). Can employers offer enhanced contractual pay to mothers/primary adopters but not to fathers/partners?
Eine zum 1. Oktober 2016 in Kraft tretende Gesetzesänderung kann einen erheblichen Einfluss auf die Standard-Arbeitsverträge vieler Unternehmen in Deutschland haben.
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”
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).