— Employment Law
Where the contract of an employee within the scope of job security is terminated without a valid reason, the employee may seek reinstatement. This article sets out the scope conditions, the mediation and filing periods, the burden of proof, and the periods that run once the judgment becomes final.
Job security is the institution that makes the employer's right to terminate conditional on showing a valid reason. Articles 18 to 21 of Labour Code no. 4857 govern that protection and the procedure that applies where it is breached.
In practice a significant proportion of files are decided without reaching the merits, because the scope conditions were not met or a time limit was missed. What follows therefore addresses scope first and time limits second. The office's work in this field is set out on our Antalya employment lawyer page.
The periods and amounts here follow the text of Labour Code no. 4857 and Labour Courts Act no. 7036 in force.
The law in force can be consulted in the current consolidated text on mevzuat.gov.tr.
Article 18 of the Labour Code identifies the employee who benefits from job security by three criteria.
The first concerns the workplace: thirty or more employees must be employed there. The figure is determined on the basis of all employees working at the employer's workplaces in the same branch of activity.
The second concerns service: the employee must have at least six months' service. The periods in article 66 of the Code count towards that calculation. No service requirement applies to employees working underground.
The third concerns the contract: it must be of indefinite duration. Where a fixed-term contract ends on expiry of its term, no reinstatement claim may be brought.
Unless all three conditions are met the claim will not be heard, and the employee's claims fall to be assessed under other heads such as bad-faith compensation and notice pay.
An employer terminating a contract of indefinite duration must rely on a valid reason arising from the employee's capability or conduct, or from the requirements of the undertaking, the workplace or the work.
The Code separately lists situations that do not constitute a valid reason. Trade union membership, and participation in union activities outside working hours or, with the employer's consent, during working hours, are not valid reasons.
Acting as a workplace union representative; and applying to administrative or judicial authorities against the employer, or taking part in proceedings so commenced, in order to pursue rights or perform obligations arising from legislation or contract, are likewise not valid reasons.
Race, colour, sex, marital status, family responsibilities, pregnancy, childbirth, religion, political opinion and similar grounds are on the list, as is absence during the periods in article 74 in which the employment of women is prohibited.
Article 19 imposes two requirements as to the form of termination.
The first is writing: the employer must give the notice of termination in writing and state the reason clearly and definitely. As a rule the reason may not later be changed or expanded.
The second is the employee's defence: the contract of indefinite duration of an employee may not be terminated for reasons connected with that employee's conduct or performance without first taking their defence to the allegations.
The exception is that the employer's right to terminate under article 25(II) is reserved. Where termination is for just cause based on conduct contrary to morality and good faith, no defence need be taken.
The first step is not litigation but mediation, and it is a condition precedent to proceedings.
An employee whose contract has been terminated must apply to a mediator seeking reinstatement, within one month of service of the notice of termination, on the ground that no reason was given or that the reason given is not valid.
Under article 3 of Labour Courts Act no. 7036, applying to a mediator is a condition precedent in claims seeking reinstatement. Where it emerges that proceedings were issued without such an application, the claim is dismissed on procedural grounds without any further step.
Time runs not from the date of termination but from service of the notice. Documenting when and how the notice was served is therefore important.
Where no agreement is reached in the mediation, proceedings may be issued in the labour court within two weeks of the date of the final minutes.
If the parties agree, the dispute may within the same period be referred to a private arbitrator instead of the labour court.
The claimant must annex to the statement of claim the original, or a copy certified by the mediator, of the final minutes recording that no agreement was reached. If it is not annexed the court allows a peremptory period of one week; if the warning is not complied with, the claim is dismissed on procedural grounds without service on the other party.
Where a claim is dismissed on procedural grounds because it was issued without applying to a mediator, the dismissal is served on the parties of the court's own motion, and a mediator may be applied to within two weeks of that service.
Article 20 allocates the burden of proof expressly.
The obligation to prove that the termination rested on a valid reason lies with the employer, who must establish both the reason relied on and its validity.
Where the employee alleges that the termination rested on some other reason, the employee bears the burden of proving that allegation. If it is said that the termination was for union reasons or followed a complaint, proof of that falls to the employee.
The claim is determined expeditiously. Where an appeal is brought, the regional court of appeal decides expeditiously and finally, which means there is no further appeal on a point of law.
A declaration that the termination was invalid does not by itself reinstate the employee; the Code lays down two further periods, and these are where rights are most often lost.
The employee must apply to the employer to start work within ten working days of service of the final judgment of the court or private arbitrator. The period is counted in working days.
The employer must then reinstate the employee within one month. If it does not do so on that application, it must pay compensation of not less than four and not more than eight months' pay.
When declaring the termination invalid, the court or arbitrator also fixes the amount payable if the employee is not reinstated. That amount is fixed in money by reference to the pay at the date proceedings were issued.
For the period the employee was not employed until the judgment became final, up to four months' accrued pay and other entitlements are paid. This head is payable whether or not the employee is reinstated.
Like the compensation for non-reinstatement, it is fixed in money by reference to the pay at the date proceedings were issued.
If the employee is reinstated, pay for the notice period already paid in advance and any severance pay are set off against the sums due, so that no double payment arises for the same period.
Where an employee who is not reinstated was given no notice period, or was not paid for it in advance, the pay for those periods is paid in addition.
The first document is the notice of termination. Whether it was in writing, whether the reason was stated clearly and definitely, and the date of service, are decisive both on the merits and as to time.
The second is the record of the employee's defence. In terminations based on conduct or performance, failure to take a defence is treated as a ground of invalidity in itself.
The third is the number of employees. Where the thirty-employee criterion is disputed, social security records and the employer's other workplaces in the same branch are examined, usually at the first stage of the case.
The fourth is the calendar. The one-month mediation period and the two-week filing period are peremptory; once missed, the outcome follows without examination of the merits. For the general route followed in files in Antalya and Konyaaltı, see the Konyaaltı lawyer page.
The questions below concern this provision; more general questions are answered on the frequently asked questions page.
Thirty or more employees must be employed at the workplace. The number is determined on the basis of all employees at the employer's workplaces in the same branch of activity.
The periods in article 66 of the Labour Code count towards the six months. No service requirement applies to employees working underground.
Yes. The employee must apply to a mediator seeking reinstatement within one month of service of the notice of termination; this is a condition precedent to proceedings.
Where no agreement is reached, proceedings may be issued in the labour court within two weeks of the date of the final minutes. By agreement the dispute may go to a private arbitrator in the same period.
The employer bears the burden of proving that the termination rested on a valid reason. If the employee alleges some other reason, the employee must prove that allegation.
The employee must apply to the employer to start work within ten working days of service of the final judgment. The employer must reinstate them within one month of that application.
If the employer does not reinstate within one month, compensation of four to eight months' pay is payable. In addition, up to four months' pay and other entitlements are payable for the period until the judgment became final.
The claim is determined expeditiously, and on appeal the regional court of appeal decides expeditiously and finally.
Two things decide reinstatement files: assessing the scope conditions correctly at the outset, and not missing the calendar. The one-month mediation period, the two-week filing period and the ten-working-day application period after judgment all produce their effect without any examination of the merits once they are missed.
The office's fields of work are set out on the practice areas page. For an assessment specific to your file, you may reach the office through the contact page.