In order to protect employees against unfair or invalid termination of employment contracts by employers, the legislator has protected the employee by including the reinstatement lawsuit, which is a way that can be easily used by the employees, in the Labor Legislation.
Who Can File a Reemployment Lawsuit:
The right to file a reemployment lawsuit is given to the employee. The employer does not have the right to file this lawsuit. This lawsuit can be filed as a result of an unfair or invalid termination of employment by the employer.
Conditions of Reemployment Lawsuit:
It is included in Article 18 of the Labor Code.
In workplaces employing thirty or more workers, the employer who terminates the indefinite-term employment contract of an employee with at least six months of seniority must rely on a valid reason arising from the employee's competence or behavior or the requirements of the enterprise, workplace or work. (Additional sentence: 10/9/2014-6552/2 Art.) The seniority requirement is not sought for workers working in underground works.
- Whether the worker is subject to the Labor Law or the Press Labor Law:
The reason for specifying these two types of Labor Law is that in Turkish Law, workers can work under more than one law. For example; employees working under the Maritime Labor Law, Law of Obligations, etc. will not be able to benefit from the reemployment lawsuit.
- The worker must have at least 6 months of seniority:
The duration of the worker's employment in the workplace must be 6 months or more. As clearly stated in the wording of the law, this seniority requirement is not required for underground workers. Another important point is that if the employee has worked in more than one enterprise of the same employer for a certain period of time, the total period will be taken into consideration and seniority will be calculated accordingly. The trial period will also be included in the 6-month seniority.
- Employment of Thirty or More Workers at the Workplace:
This is clearly stated in Article 18/4 of the HR.
If the employer has more than one workplace in the same line of business, the number of workers employed in the workplace is determined according to the total number of workers employed in these workplaces.
As it is understood, the employer is required to employ a minimum of 30 workers in the workplace. If there is more than one workplace, the total number of workers in the same line of business is taken into account.
- The contract between the worker and the employer is of indefinite duration:
Employees working under a fixed-term employment contract will not be able to benefit from this case. However, there is an exception; employees working under a part-time employment contract may benefit from this right, provided that it is not a fixed-term contract.
Some employers are reluctant to conclude indefinite-term employment contracts with their employees due to this article. However, if the legislator determines that employers have successively concluded fixed-term employment contracts with their employees, the provisions on job security will apply to these employees.
- Not Being the Employer's Representative:
- İK M:18’e son fıkra uyarınca
This Article, Articles 19 and 21 and the last paragraph of Article 25 shall not apply to the employer's representatives and assistants who manage and direct the whole enterprise and to the employer's representatives who manage and direct the whole workplace and have the authority to hire and fire workers.
- Termination of the Employment Contract by the Employer without Justified or Valid Reason:
It is important that the employment contract was terminated by the employer.
If the employee has terminated his/her employment contract through justified termination, resignation, rescission, or mutual termination, he/she will definitely not be able to file a reemployment lawsuit.
When we consider the situation from the employer's point of view, the lawmaker wants the employer to consider termination as a last resort. If the employer has other options before termination, he/she should use these options first and not go for immediate termination.
The burden of proof as to whether the termination was valid is on the employer.
Mediation Process:
In order to understand the process in question, we recommend you to read our article titled 'Mediation Process in Labor Law' in the Blog section of our website.
In the Labor Courts Law No. 7036, the Legislator introduced a mandatory mediation process in reemployment cases, and this process is considered a condition of litigation.
As can be understood from the fact that it is mandatory, if the lawsuit is filed without applying to the mediation process; the lawsuit will be dismissed procedurally in accordance with the relevant articles of the CCP.
The employee must apply to the mediator within one month from the notification of termination. This period is a forfeiture period and if not used, the right will be deprived.
Return to Work Lawsuit Process:
If the parties cannot reach an agreement as a result of the mediation, a Memorandum of Non-Agreement is issued. A lawsuit must be filed at the competent Labor Court within a period of 2 weeks from the date of issuance of this report.
The plaintiff party must attach the original or a copy certified by the mediator of the Minutes of Non-Agreement to the petition of this case.
If it is not attached, the Court shall give the plaintiff a definite deadline and if it is not attached within this deadline, the case shall be dismissed.
Competent Court
The Labor Court is the competent court. In places where there is no Labor Court, the Civil Court of First Instance acting as a Labor Court will be in charge.
Competent Court
The court of the place where the employer is deemed to be domiciled (the trade registry record can be checked). Or the court where the workplace where the employee works will be authorized.
Return to Work Lawsuit Period:
This case will be concluded within 2 months according to the expedited procedure.
If the decision is appealed, the Court of Cassation will issue a final judgment within one month. Unfortunately, due to the intensive court processes in our country, this period may take a little longer.
Reinstatement Case Result:
There can be 2 types of results.
- Acceptance of the Case:
We have already mentioned that the burden of proof lies with the employer. If the employer cannot prove that the termination was based on valid or justified grounds, the case will be accepted. Of course, the other party (the employer) can appeal this decision.
Invalidity of Termination and Reinstatement of the Employee:
If the court accepts the case against the employer, the termination made by the employer will be invalid. The Labor Court will state this in its reasoned decision.
After this step, the Labor Court will decide on the reinstatement of the worker.
- Reinstatement Application:
After the court decides to reinstate the employee, the employee must apply to his/her employer within 10 working days (it should be noted here that it is 10 working days, not 10 days) from the notification. As we have stated in the previous periods, the period here is also a forfeiture period and the periods specified by the legislator must be observed.
If the employee does not apply to the employer within 10 working days, the employer will no longer be obliged to reinstate the employee.
If the worker applies to his/her employer within 10 working days;
The employer must take the employee back within 30 days. Pursuant to HR Article 21 in terms of compensation for idle time Until the finalization of the decision, the worker shall be paid his/her wages and other rights up to a maximum of four months for the period he/she is not employed.
If not, the employee will have to pay the compensation that the employee deserves. Pursuant to Article 21 of the Law No. 4857: If we look at the explanation in the law of Non-employment Compensation, also known as Job Security Compensation;
If the employer fails to reinstate the worker within one month upon his/her application, the employer is obliged to pay the worker compensation amounting to at least four months' and at most eight months' wages. Burada söz edilen ücret çıplak ücrettir.
Seniority periods will be effective in the severance pay:
- 4 months for workers with 6 months to 5 years of seniority,
- 5 months for workers with 5 to 15 years of seniority,
- 5 months for workers with between 5 and 15 years of seniority,
Depending on the reasons for termination, these rates can be up to a maximum of 8 months.