Re-Employment Lawsuits

July 2014 Özen Ödev
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Introduction

According to Labor Law No. 4857 (Labor Law), the termination of an employment contract without a valid reason does not automatically invalidate the termination. When an employee opens a re-employment lawsuit pursuant to conditions stipulated in the Labor Law, and if the case concludes in the employee’s favor, the termination will be invalid and the employee may apply to return to work.

The Necessary Conditions to File a Re-employment Lawsuit

Working under the Labor Law

The 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, the 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 the definite-term employment contract as ‘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 the definite-term employment contract determined by the parties, at the end of the period, the employment contract will terminate automatically; so in Labor Law, definite-term workers are not entitled to open a re-employment lawsuit.

However, in Labor Law, signing a definite-term contract more than once, consecutively, is prohibited unless there is a valid, sustainable reason. In such a case, it is stated that the contract will be considered as an indefinite-term contract from the beginning.


Termination of the Employment Contract by the Employer

A re-employment lawsuit is brought as a protection for the employee against termination by the employer. The employee has no right to open a re-employment lawsuit when the termination is not made by the employer.

At least 30 Employees Should be Working in the Workplace

To open a re-employment lawsuit, there must be at least 30 employees in the workplace. While accounting the employee number, if the employer has more than one establishment in the same business line, the employees of all establishments will be taken into account.

Accrual of at Least 6 Months’ Severance

In order to open a re-employment lawsuit, another condition is to have accrued at least 6 months’ severance. An employee who has worked less than this period cannot file a lawsuit. While calculating 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 establishments of the same employer.

Termination Based on an Invalid Reason

Employees may open a re-employment lawsuit in the case of termination based on an invalid reason. In the 18th article of the Labor Law, the situations sited 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 against the employer to claim regulatory or contractual rights or to fulfill the obligations or participating in the process initiated in this regard.
  • Race, color, sex, marital status, family responsibilities, pregnancy, religion, political opinion and similar reasons.
  • Not coming to work during maternity leave.
  • Due to illness or accident, temporary absence from work during the waiting period prescribed in Article 25 of the Labor Law (ı) numbered clause and (b) sub- clause.

Not being a Representative of the Employer

In the 2nd Article of the Labor Law, it is stated that ‘Anyone who acts on behalf of the employer and is involved in the management of the enterprise, workplace and business, is called vice principal. The employer is directly responsible for the vice principal’s operations and liabilities against workers. All obligations and responsibilities of the employer also bind the vice principal. Being a vice principal does not eliminate the rights and obligations given to the employees.’ As it is seen from the definition, vice principal is an authorized person in management.

In accordance with the last paragraph of Article 18 of the Labor Law, the representatives and assistants of the employer who conduct the management and administration of a whole business and the representatives of the employer who have the authority for recruitment and dismissal, and conduct the management and administration of the whole workplace are not eligible to open a re-employment lawsuit.

Time-frame to Commence Litigation

According to Article 20/1 of the Labor Law, the employee whose contract is terminated, must file a claim within one month from the receipt of notification of the termination alleged to be invalid. If the employee does not open a lawsuit during this period, they cannot defend their right to be re-employed before the courts of law. Where the employer terminates the contract with a dismissal notice, the employee must file a claim within one month from the declaration of notification, not from the end of the dismissal notice.

The prescription period to open a lawsuit should be taken into consideration ex officio by the judge.

According to accelerated trial procedure, the case must be concluded within two months. In case of an appealed decision, the Supreme Court gives a final decision within a month.

Burden of Proof in a Re-employment Lawsuit

According to Turkish Civil Law, “everybody is obliged to prove their claim.” However, according to Article 20/2 of the Labor Law, the employer is obliged to prove that the termination is based on a valid reason. If the employee claims that the termination is based on a reason different from the reason given by the employer for termination, then the employee has the burden of proof.

Form and Content of the Notice of Termination

Whether or not the reason is justified, the employer who terminates the contract is obliged to give an explanation to the employee. According to Article 19 of the Labor Law, notice of termination made by the employer should be in written form and must state the reason for termination clearly and precisely.

Plea of the Employee

According to Article 19 of the Labor Law, where the employee files a claim in their defense, the indefinite-term contract of the employee shall not be terminated for reasons related to behavior or efficiency. Written defense by the employee is recommended.

The Petition

The employee may request the termination to be invalidated and return to work. The employee may also request at most four months salary to be paid for time missed at work until the finalization of the case. Eight months job security compensation may also be requested if the employer does re-integrate the employee into the workplace within the given time.

The Results of a Re-employment Lawsuit

As a result of the re-employment lawsuit; acceptance and dismissal of the case or abatement of an action can occur.

Acceptance of the Case. Where it is accepted that the termination is invalid and re-employment occurs, the employee should apply to the employer within 10 working days from receipt of notification of the decision. The employee, who applies on time, should start to work within one month. If the employer does not want the employee start to work, the employer will be obliged to pay four months wages and other than this, the employee’s other rights as well as a compensation fee. Under these circumstances, the employer will have to pay compensation amounting to at least four months to at most eight months wages.

Dismissal of the Case. If the court rejects the re-employment lawsuit, then it accepts the termination as it is, based on a legal, valid and justifiable reason. If the case is dismissed, the employee is liable for the legal expenses and proxy costs of the opposing party. Even though the re-employment lawsuit is dismissed, the employee’s unpaid severance, notice pay and other legal fees may be requested from the employer with a separate lawsuit.

Abatement of an Action. While the case is ongoing, if the employee is re-employed or waives the lawsuit, the consequence will be the abatement of an action. In the first case, there is no need to order a peremptory nonsuit. If the employee returns to work it means the termination is not valid. In such a case, the employee may request at most four months wages and other rights to compensate his idle time. In the event the employee waives the lawsuit, litigation costs will be paid by each party.

Conclusion

By sheltering the occupational safety system, Labor Law removes the freedom of termination from the employer and the validity of termination is attributed to reasons determined by law. Further, in the event of termination with invalid reason, the Labor Law enables employees to be re-employed and to be paid up to four months salary for time missed at work.

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