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taken as a result of business operations may be caused by internal and
external factors. In the above-mentioned decision, external decisions can
be defined as
“all reasons on which enterprise have not a direct effect”
and
“diminution regarding orders, difficulties related to the marketing,
energy problems”
can be given as examples. Moreover, it is stated in this
decision that, for the termination of the employment agreement with a
valid reason related to an external reason, there should be existence of
labor surplus. In this respect, burden of proof is on the employer to prove
the related situation and its effects caused on the business in a likely
reemployment lawsuit which might be filed by redundant employees.
In the related decision, internal factors are defined as
“all technical
and organizational measures taken by the employer for the achievement
of management policy”.
In this framework, it is obvious that the employer
has right to take any decision related to the management and therefore
uses hereby this right of management. According to this decision;
“Employer is obliged to concretize the measures taken for the
management of business and the effects of these measures to the
employee regarding the termination with an internal reason.
However, employer is not required to justify the expediency
and the necessity of these measures. In this framework, courts
shall take into consideration if the operational decision is really
applied and implemented and if there is not any possibility to
continue to work in this workplace for the employee because
term of the notice of termination is ended.”
The Principle of
“Ultima Ratio”
In this framework, operational decisions are not subject to
examination for legitimacy by the courts, because burden of proof lies
with the employer to prove the valid reason pursuant to the Article 20/2
of Labor Law. In other words, it is the duty of employer to prove that
the termination is inevitable, necessary and ultimate remedy and is not
arbitrary but absolute. In that decision, it is emphasized that control of the
necessity of the termination should be
“technical and not economical and
be made regarding the principle of ultima ratio”.