1) Terms of Re-Employment Lawsuits
In accordance with Labour Act no. 4857, in section 20, regarding with necessity of perpetuity and stability in business life, it is regulated that the termination of an employment contract without a valid reason, invalidate the termination. For this purpose, sections 18, 19, 20, 21 of labour act provide the concept of job security for employees.
According to aforesaid concept of job security, in order to file a reemployment lawsuit, conditions are as follows;
Working activity of employee must be subject to Labour Act(No:4857) or Press Labour Act(No:5953)
Employment contract must be for indefinite duration
There must be at least thirty employees in workplace who is working in same sector with employee
Employee must have been working in the same workplace at least for six months
Not being representative of employer- Not being representative condition for employee comprise of managing the company’s daily activities as whole and hiring or firing employees-
The conditions listed above are the terms of validity for filing reemployment lawsuit in court. Reemployment lawsuit which does not comply with stated conditions will be rejected on the preliminary examination conducted by court.
The point which needs to be taken into consideration on the commencement process of reemployment lawsuit is filing reemployment lawsuit has limited period of one month time which is starting with the date that employee receives an official notification about termination of employment contract. On the other hand, employee’s applications for reemployment lawsuits will be rejected on the stage of preliminary examination of lawsuit.
2) Which Reasons are Deemed to be Valid to Terminate Employment Contract by Employer
Valid reasons for termination of employment contract by employer are regulated in section 18 of Labour Act. These regulated reasons are as follows;
Insufficiency of employee on the activities which are required by job description
The reasons which arise out of employee’s behaviours in workplace
The reasons which arise out of the conditions of employer company or the job itself
Section 19’s sub section 1 of Labour Act regulates the requirement for plea of the employee with an official notification disclosed by employer in case of behavioural or insufficiency reasons for termination of employment agreement by employer. Otherwise, not conducting the plea process for employee will be an essential reason which invalidates the termination of employment contract.
On the other hand, employer must disclose the valid reason which they based upon for termination with an official notification while terminating the employee contract. In the contrary case termination of employment agreement will be adjudicated as invalid by court because of having unclear and imprecise motives for terminating employment contract.
3) Consequences of Reemployment Lawsuits
In case of courts having adjudicated that termination of employment agreement is not based upon valid reason and employee should be reemployed to the workplace, employee should request for being reemployed in ten days. Otherwise, the contrary case will turn invalid termination of employment contract into valid termination and so employee would lose the rights arising from reemployment lawsuit. According to regulation, on that stage in one month limited period of time, employers have to response employee’s request of being reemployed in the same workplace again. Consequences of reemployment lawsuit are depend on what employee’s response will be to employer’s affirmative reaction against court’s decision. After completion of judgement with acceptance of case in reemployment lawsuit, employer must offer employees same position in workplace. In case of employee’s negative approach to employers offer, employee will lose all the rights arising from reemployment lawsuit.
- Consequences of Acceptance of Employee
In post acceptance period of reemployment lawsuit, since the termination of employment contract deemed as invalid, employer have to compensate the period that employee could not work, including salary and all the benefits that employee could have get while he/she is working in the workplace for four months. In termination process, it needs to be taken into consideration, whether employee benefited from severance indemnity and payment in lieu of notice. In such cases repayment is needed to be done by employee. However, in practice parties could decide to offset the payments. - Consequences of Rejection of Employee
In post acceptance period of reemployment lawsuit, despite the fact that court adjudicated the case in favour of employee, employer may not prefer to offer same position to employee. In such cases, employer have to compensate the period that employee could not work, including salary and all the benefits that employee could have get while he/she is working in the workplace for four months and also employer have to pay dismissal wage. Besides, the four months’ salary and additional benefits which have to be paid by employer will have to place on account for severance indemnity and payment in lieu of notice.
However some problems can be observed in practice, arising on that point. The controversial point is whether there should be payment in lieu of notice or not in case of dismissal notice. Accordingly, there are controversial and contradictory decisions of different departments of Supreme Court. Supreme Court Assembly of Civil Partners decided on the issue that dismissal notice does not necessarily affect the validity of payment in lieu of notice. Despite the fact that there are controversial and contradictory views on the issue, the point needs to be focused, once termination invalidated entire transactions in post termination process have to be deemed as invalid. Thereby, since rejection of employer purported as another legal act and deemed as dismissal, this legal act could provide additional rights for severance indemnity and payment in lieu of notice.
Consequently, in the case that dismissal of employer concluded as invalid by court in reemployment lawsuit and reengagement requested by employee in same workplace, there must be payment in lieu of notice because of the fact that previous dismissal notice deemed as invalid. Since the date of rejecting the reengagement request of employee accepted as dismissal date, in calculation rejection of reengagement date must be taken as basis. Therefore, dismissal notice does not have any effect on invalidated termination of employment agreement. Indeed, first attempt of termination will be accepted as invalid according to Turkish Labor Law principles. As a conclusion, there must be payment in lieu of notice for employees in such cases because of the fact that dismissal notice is invalid.
