Re-employment Lawsuit in Light of the Recent Regulations
Introduction
The right to initiate a re-employment lawsuit, is one of the job security provisions, stipulated in favor of the employees, of Labor Law No. 4857 ("Labor Law"). This right, aims to prevent arbitrary termination of the employment contract or termination of the contract without a valid reason by an employer.
This right is stipulated in Article 18 and the following articles of the Labor Law. Accordingly, "in workplaces employing thirty or more employees", an employer who terminates the indefinite-term employment contract of an employee with at least 6 months’ severance must rely on a valid reason. This reason must be connected with the capacity or conduct of the employee, or based on the operational requirements of the business, workplace or work.[1] The same article also lists the reasons, which do not constitute a valid reason for termination.
The Labor Law also regulates the procedure to be applied in the termination of the contract. Accordingly, the notice of termination shall be given by the employer in written form, and must spell out the reason for termination in clear and precise terms. In addition, indefinite-term employment contracts shall not be terminated for reasons related to an employee’s conduct or performance before they are provided an opportunity to defend themselves against the allegations made.[2] At this point, the employer’s right to terminate the employment contract due to serious misconduct or malicious or immoral behavior is, however, reserved.
An employee whose employment contract has been terminated may file a re-employment lawsuit with the claim that there was no valid reason for the termination, or that the reason given in the notice of termination is not valid reason.[3]
At this stage, it is necessary to address a frequently asked and controversial question. Although many people do not realize it, the right to open a re-employment lawsuit is a right that is independent from the receivables of the employee and compensation claims, and the fact that all receivables and compensations (e.g. vacation pay, severance pay, etc.) have been paid at the time of termination does not constitute an obstacle to filing a re-employment lawsuit.
Article 3 of Labor Courts Law No. 7036, which entered into force after being published in the Official Gazette dated 25.10.2017, stipulates that an application to a mediator is a precondition for filing lawsuits for employee or employer for collection of receivables and compensation based on the Labor Law, individual or collective employment contracts and for re-employment. This provision entered into force on 01.01.2018. Thus, as of this date, an application to mediation must be made before filing a lawsuit for re-employment. In line with this provision, the amendment made to Article 20 of the Labor Law stipulates that if parties do not reach an agreement at the end of the mediation process, a lawsuit can be filed in the labor court within two weeks from the date of the final report.
The Necessary Conditions to File a Re-employment Lawsuit
Working under the Labor Law
An employee should be working, as defined under the Labor Law, to file a re-employment lawsuit.
Working with an Indefinite-term Employment Contract
According to the Labor Law, an employment contract may be for a definite or indefinite term. This binary distinction is important when the contract is terminated. Other than that, as a rule, there is no difference between the two types of contract in terms of working conditions.
The basic rule is that the employment contract must be for an indefinite term. As per Article 11 of the Labor Law, an indefinite-term employment contract is defined as follows: “The contract will be counted as indefinite where the employment relationship has no defined or definite duration.” The same article defines a definite-term employment contract as follows: “The written contract between employer and employee, depending on the objective conditions, such as fixed-term work or completion of a specific task or the occurrence of a certain event.”
As a rule, in a definite-term employment contract determined by the parties, at the end of the period, the employment contract will terminate automatically; hence, under the Labor Law, definite-term employees are not entitled to file a re-employment lawsuit.
Moreover, the Labor Law prohibits signing a definite-term contract more than once, consecutively, unless there is a valid, reason. In such a case, the contract will be considered to be an indefinite-term contract from the beginning.
At least 30 Employees Should be Working in the Workplace
A re-employment lawsuit can only be filed if there are at least 30 employees in the workplace. The number of employees should not be interpreted too strictly. For example, if an employer has more than one workplace in the same line of business, the employees of all of the workplaces will be taken into account. There is also no distinction according to the type of employment contract. In group companies, the employee may work for more than one employer at the same time. In this case, if the employee works for all of the companies, then the number of employees in all of the companies must be taken into account.
Accrual of at Least 6 Months’ Severance
In order to file a re-employment lawsuit, an employee must have accrued at least 6 months’ severance. An employee who has worked less than this period cannot file a lawsuit. While calculating the accrual of 6 months’ severance, Article 66 of the Labor Law stipulates that “situations deemed as working time” will be taken into consideration. Six months’ severance must be calculated by combining the time worked in one or more different workplaces of the same employer.
Termination Based on an Invalid Reason
Employees may bring a re-employment lawsuit in the case of termination based on an invalid reason. In the 18th article of the Labor Law, the situations cited below are deemed as invalid termination reasons:
- Participating in union activities after working hours or during working hours with the consent of the employer or being a member of a union.
- Being a union representative.
- Applying to administrative or judicial authorities or participating such proceedings against the employer, to claim rights arising from a contract or regulation, or to fulfill regulatory obligations.
- An employee’s race, color, gender, marital status, family responsibilities, pregnancy, religion, political opinion and similar reasons.
- Not coming to work during maternity leave.
- Temporary absence from work during the waiting period prescribed in Article 25 (1) (b) of the Labor Law after an illness or accident.
Not Being an Employer’s Representative
Article 2 of the Labor Law states that “Anyone who acts on behalf of the employer and is in charge of the management of the work, workplace and business, is called the employer’s representative. The employer is directly responsible for the operations and liabilities of the employer’s representative against the employees. All obligations and responsibilities of the employer under this Law also bind the employer’s representative. Being an employer’s representative does not eliminate the rights and obligations granted to the employees.” Thus, the employer’s representative is any authorized person engaged in management of the workplace.
In accordance with the last paragraph of Article 18 of the Labor Law, the employer’s representatives and assistants who manage and direct the entire business and the employer’s representatives who manage and direct the entire workplace and have the authority to recruit and dismiss employees will not be able to file a re-employment lawsuit.
Period for Filing a Lawsuit, Claim Subject to Lawsuit and Proceeding
Before the application to mediation become mandatory for certain types of cases through various amendments to the legislation,[4] Article 20 of the Labor Law required that an employee who intended to file a re-employment lawsuit based on a claim that a reason was not given in the notice of termination, or that the reason given was not a valid reason, they had to do so within one month from the notification of the notice of termination. However, as a consequence of the amendment made by Law No. 7036, the employee must first apply to the mediator within one month following the notification of the notice of termination. If no settlement is reached at the end of the mediation activity, the employee may file the re-employment lawsuit within two weeks from the date of the final report. If the mediator is not consulted within the time limit or if a lawsuit is not filed within the time limit following the conclusion of the mediation process, the claim for re-employment may no longer be raised. At this point, it should be noted that if the employer gives a notice of termination to an employee within the notice period, the time to apply to mediation starts with that notification, not from the end of the notice period.
Since the period for filing a lawsuit constitutes a prescription period, it must be taken into account by the judge ex officio, together with the precondition for filing a lawsuit (e.g. application to a mediator). Pursuant to the relevant provisions of both the Code of Labor Courts and Code of Civil Procedure No. 6100, re-employment cases are tried under “simple procedure.” In re-employment cases, the parties may request an appeal against the decision of the local court. Pursuant to Article 8, paragraph 1/a of the Code of Labor Courts, re-employment cases are not subject to appeal before the Court of Cassation.
In the lawsuit petition, the employee asks the court to invalidate the termination and to order re-employment. However, in the event that the court decides that the termination is invalid, the employee may also request a maximum of four months’ salary for time missed at work and, if the employer fails to re-employ the employee within the time limit, a compensation of four months to eight months may also be requested. The amount of this compensation is assessed by the court, taking into account the severance of the employee at that workplace.
According to the general regulatory provision of the Turkish Civil Code, “everyone is obliged to prove their claim.” However, Article 20 of the Labor Law provides an exception in this regard. In the event of a re-employment lawsuit, it is the employer, i.e. the defendant, who has the burden of proving that the termination was based on a valid reason. On the other hand, if the employee claims that the termination is based on a reason other than the one given by the employer, then the burden of proof will be on the employee.
The Results of a Re-employment Lawsuit
If the court decides that the termination is invalid and the employee is re-employed, the employee must apply to the employer within 10 working days from the notification of the finalized decision to the employee. Otherwise, the termination shall be deemed a valid termination.
Following the timely application, the employer must re-employ the employee within one month. If the employer refuses to reemploy the employee, the court will oblige them to pay the employee for the time missed at work, as well as compensation in the amount of four to eight month’s wages.
If the court rejects the re-employment lawsuit, then the termination deemed as legal and based on valid reason. If the case is dismissed, the employee will be liable for the legal expenses and the attorney’s fee in favor of the opposing party, if they had been represented by an attorney. As it is stated above, receivables of the employee and compensation amounts are different from the right to request for re-employment. Therefore, unpaid receivables or severance, notice pay and other compensation claims may be requested from the employer with a separate lawsuit.
Conclusion
Labor Law provides for a job security system in favor of the employee. Accordingly, in the presence of certain conditions, if the employer terminates the employee’s employment contract arbitrarily, or on grounds that are not valid, the employee is given the opportunity to request re-employment and to demand the payment of up to four months’ wages for time missed at work. In the event that re-employment is ordered and the employer fails to re-employ, they may also be obliged to pay compensation.
Since mediation is now mandatory in labor law disputes, a plaintiff must apply to a mediator before filing a re-employment lawsuit. If no settlement is reached before the mediator, a lawsuit can be filed. In re-employment cases, there is no possibility of appealing to the Court of Cassation, and the decision cannot be enforced before it is finalized.
- Article 18 of the Labor Law.
- Article 19 of the Labor Law.
- Article 20 of the Labor Law.
- Uzun, Alper: “Mandatory Mediation in Labor Disputes”, Erdem & Erdem Newsletter, August 2017, https://www.erdem-erdem.av.tr/en/insights/mandatory-mediation-in-labor-disputes
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