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With the entry into force of the New Labor Code on 10 June 2003 ("Labor Code"), the former Labor Code of 1971 was abolished, with the exception of one article1. Introduction of the Labor Code was mainly due to the directives of the International Labor Organization (ILO), as well as economic and social requirements.
Among the novelties introduced by the Labor Code is the possibility of dismissed employees to file lawsuits to be reinstated to work (işe iade davası). Accordingly, employees whose employment contracts are terminated are entitled to file a lawsuit to be reinstated to work, subject to certain conditions. The applicable conditions are set forth under Articles 18-21 of the Labor Code, as follows:
a) The workplace where the employee has been working must employ 30 or more employees. The number of employees that shall be taken into account is the number as of the date of termination. The type of the contract is irrelevant. On the termination, sick employees and employees on vacation shall also be taken into account. On the other hand, apprentices, interns and temporary workers shall not be included. In the counting of 30 employees, other employees of the employer employed at other workplaces in the same business line (the total number) shall be included.
b) The employee shall have a seniority of at least six months. In the calculation of the six-month period, the continuity of the employment relationship shall be taken into account. The seniority of six months shall be calculated by addition of the different periods of time spent in different workplaces of the same employer.
c) The employee shall not be in the position of the employer’s representative, with power to manage and administrate the whole workplace and authority to hire and to dismiss employees.
d) The employee must be employed for an indefinite term.
e) The termination must not be based on a just cause or valid reason2.
f) The termination must not be made duly,
If the said conditions are present, then the employee whose employment is terminated can file proceedings before the Labor Court. Some significant decisions of the Court of Appeals’ regarding the evaluation of these conditions are summarized hereunder, in order to provide our readers with an understanding of how these conditions should be interpreted.
Decision of the 9th Chamber of the Court of Appeals, dated 8 May 2003
Termination must be considered as a last resort. Considering the decrease of demand as well as the economic crisis in the country, the employer should remove employees’ overtime and reduce the number of working hours. Without taking such measures, the employer must not dismiss employees.
Decision of the 9th Chamber of Court of Appeals, dated 27 October 2003
An employee’s entitlement to retirement does not necessarily bestow a right upon the employer to terminate his (her employment contract. An employee’s right to retirement cannot be regarded as a just cause for termination.
Decision of the 9th Chamber of the Court of Appeals, dated 24 June 2004
While assessing an employee’s efficiency, the expert witness should (i) determine whether the work performed is in compliance with the required standards; (ii) if in compliance, whether the applicant has performed weakly; (iii) if there is a weakness in performance, whether such default is circumstantial /conjectural or structural; and (iv) whether a low level of production has resulted from such weakness.
Decision of the 9th Chamber of the Court of Appeals, dated 27 October 2003
The employer must state clearly and absolutely the reason for termination. Otherwise, the termination may be held invalid, and the employee should be returned to work.
Decision of the 9th Chamber of the Court of Appeals, dated 11 November 2003
The lawsuit for returning to work must be filed within one month as of the date of notification of the termination notice (not at the end of the notification period).
Footnotes
1.The provision of the former Labor Code that is still in force is related to payment of severance pay.
2. Termination by just cause: Insufficiency of the employee (e.g. inaptitude for the work, harmony/consistency, insufficiency of learning or self-improvement, insufficiency of efficiency or inefficiency); employee’s behavior (e.g. frequent lateness to work, serious troubles and differences with superiors and colleagues); needs of the enterprise or workplace (e.g. general stagnation in the market, loss of market share, diminution/decrease of sales, raw material problems, application of new technologies, removal of certain type of business, closing of certain sections of the workplace).
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.
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