The Notification Requirement in Collective Redundancy
August 2010According to article 29 of the Labor Act (“The Act”), an employer is obliged to notify in writing the workplace labor union representatives, relevant regional directorate, and Turkish Employment Organization at least thirty days in advance before making a collective redundancy as a result of economic, technologic, structural, or similar undertaking, workplace, or requirements of work.
The fifth paragraph of the article states that these notices will enter into force thirty days after the intention to have a collective redundancy is notified to the regional directorate.
Due to ambiguity in the relevant article, different opinions in doctrine arose as to whether “after thirty days” means the commencement of termination notices or the expiration of an agreement.
In the doctrine, the dispositions of the Act literally mean that the termination notices, being unique to collective redundancy, are fixed at thirty days. However, the consideration of the collective redundancy article, other articles, and the purpose of the Act lead to the position that the termination notices will enter into force by the end of thirty days.
It is possible to agree on that opinion taking into consideration the following: The idea of application of same period of time to employees with different working durations is contrary to the purpose of the Act. Consequently, any act regarding the termination of agreements is performed during the thirty days that commence with the notice to the regional directorate, such act and its consequences will be effective at the end of thirty days.
According to another opinion, if the employer notified the termination to employees before the notice to regional directorate, the notice periods will not run until thirty days following the notice to the regional directorate.
As an opposite opinion, it is expressed that the termination notice periods are assumed to overlap and for the employees whose notice periods are less then thirty days, these periods will be extended to thirty days. And according to another opinion, the agreement of the employer whose notice period ended within thirty days will terminate, but the consequences of termination will arise following these thirty days.
The legislature aimed to prevent or to reduce the consequences of the collective redundancy by negotiation with the labor unions and not to modify the termination notice period of thirty days. Even the appropriate applicability of this thirty-day period may be discussed since it is thought that the mentioned opinions are not suitable for the aim of providing additional security against collective redundancy.
Consequently, pursuant to the fifth paragraph of art. 29 of the Labor Act, the termination notices of collective redundancy, being different from personal redundancy, will take effect after an additional period of thirty days. The expression of “will take effect” in the relevant article proves that the labor contract does not terminate until the end of thirty days.
The intention is to give an active role to the regional directorate in notifications, and therefore the notices need to be notified to the regional directorate to be effective. In case of a failure to realize this notice, the thirty-day period for validity of termination will not run, and the termination will not have any effect and the termination notices periods will not run. In other words, since the terminations will be effective after the end of thirty days following the notices, the notice period will run from this date. The employer could also terminate the agreements by paying the fees for the notification period. Even if the employer chooses to pay these fees in advance, the termination will be effective and bear consequences at the end of thirty days.
Due to the fact that the termination notices will be effective after the end of thirty days following the notification to the regional employment directorate, the employer should determine the date of termination by adding at least thirty days to the date of notification. The thirty-day period will expire on the thirtieth day after notification. If the notification is not made, the termination will not occur. In other words, the notice periods that must be respected in terminations according to article 17 of Labor Law will not run during the notice period which is made to regional directorate thirty days before and will run after the end of these thirty days.
However, it does not mean that the thirty days in the fifth paragraph will start at the end of the thirty days in the first paragraph. It is necessary to accept that the period in the first paragraph which will run from the notification to relevant authorities and the time of affecting in the fifth paragraph are the same, and it is the thirty-day period which is based on the moment of notification to the regional directorate. In this regard, in conformity with the legislature’s purpose, it is necessary to accept that these two paragraphs are based on the same periods and that there is no second thirty-day period.
For example, if the agreements of 20 workers in a workplace with 50 workers will be terminated on April 1, 2005, the termination must be notified to the regional directorate no later than March 1, 2005. If the employer notifies the situation on February 1, 2005, the notices will be effective thirty days later, on 3 March, 2005. Even the termination date is determined as April 1, 2005. Because of early notification, the termination notices will have effect by March 3, 2005, and the agreements will be assumed to be terminated on this date. In that case, if the date of termination of labor agreements is later than the date of the notification to the regional directorate, it is necessary to accept that the agreement will be terminated on this date.
As seen above, if a notification is sent to the regional directorate thirty or more days before the date of termination by the employer, the agreements will be terminated on the determined date and the date of expiration will be determined by adding the notification period.