Additionally, again within the requirement for the intention to be
realistic, the Court of Cassation stated that the presence of work con-
ditions, 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 con-
troversial whether the invitation of the employer is serious and
realistic. The employer should firstly fulfill these conditions”
Conclusion
There are several issues to be taken into consideration in the appli-
cation of Art. 21 of the Labor Law. Firstly, the decision to be pro-
nounced at the end of the lawsuit pertaining to whether the determina-
tion of the termination is based on valid grounds is a declaratory deci-
sion. 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 com-
mence work to be a factor which validates the termination. On the
other hand, it should be emphasized that the invitation of the employ-
er must be realistic.
LABOR LAW
339
7
Please see the decision dated 17.06.2013 and numbered 2012/31511 E., 2013/18700 K. of the
9
th
Civil Chamber of the Court of Cassation. Source:
www.kazanci.com.tr.