Introduction
Employee invited to work by same employer
Death of employee
Closing of workplace
Retirement of employee
Employment of employee by another employer during proceedings
Transfer of enterprise
As per Labour Law 4857, an employee who has worked for at least six months under a permanent employment contract at a workplace with 30 or more employees will benefit from job security provisions. Hence, an employer which intends to terminate the employment contract of such an employee can terminate the contract only for reasons determined under the law and must follow the procedures specified.
In accordance with the law, an employer which wishes to dismiss an employee who benefits from job security provisions should base such termination on 'an objective valid cause'. The law enumerates situations that constitute an objective valid cause relating to the efficiency or behaviour of the employee or necessities of the enterprise, workplace or work. The scope and content of each category of objective valid cause have been clarified by precedents of the Court of Appeals.
In addition to basing the termination on a valid objective cause, an employer must respect statutory notice periods stated under the law. In the event that the employer does not want the employee to work during the notice period, the employer must pay the employee an amount equivalent to the pay that he or she would have received if he or she had worked the term of notice.
An employee that benefits from job security provisions may initiate a lawsuit for reinstatement to work in case of invalid termination (ie, termination without an objective valid cause). The burden of proof substantiating that the contract was terminated for a valid objective cause rests with the employer. Upon the labour court's final ruling in favour of an employee, stating that the termination was invalid, the employer must either reinstate the employee or pay him or her reinstatement compensation of not less than an amount equivalent to four months' salary and no more than eight months' salary of the employee. This compensation is paid in addition to notice pay and severance pay (which at this point should have already been paid, assuming that such payments are made upon termination). Regardless of whether the employee is reinstated to work, the employer must pay an amount equivalent to up to four months' salary and other entitlements from the time that the employee is not reinstated to work until the issuance of the labour court's final ruling.
This update examines the impact of a number of events that may occur in the course of a reinstatement lawsuit.
Employee invited to work by same employer
An employee may be invited to work by the same employer that is party to the proceedings in the course of a reinstatement lawsuit. In this case, unless an employee explicitly withdraws from the lawsuit, the proceedings shall continue and the court shall evaluate the validity of the termination, taking into consideration conditions during termination. If the court decides that the termination was invalid, payment of an amount equivalent to up to four months' salary and other entitlements from the time that the employee is not reinstated to work shall be awarded - this amount shall be determined by taking into account the time between termination and reinstatement. Proceedings in respect of reinstatement of such employee will cease and no reinstatement compensation shall be awarded, since the employee has already been reinstated. Additionally, the employment relationship between the employee and employer prior to termination will be deemed to continue.
An employee may reject the invitation to work and such rejection shall be considered to validate termination by the employer. Hence, a reinstatement lawsuit shall not continue and the court shall reject the lawsuit in favour of the employer. The employer must invite the employee to the same position under the same working conditions; otherwise, the employee is not obliged to accept the invitation of the employer.
In case of death of an employee in the course of a reinstatement lawsuit, reinstatement of the employee will no longer be possible; hence, proceedings shall cease in respect of reinstatement to work and reinstatement compensation. However, according to recent decisions of the Court of Appeals, although the employee is dead, proceedings shall continue to determine the validity of the termination effected by the employer for the purposes of social consideration. If the court rules that the termination was not valid, it must also rule for payment to be made by the employer for the time the employee was not reinstated to work until his or her death and such amount shall be paid to the heirs of the employee.
Closing of a workplace in the course of a reinstatement lawsuit shall not validate termination by an employer - proceedings shall continue and in the event that the termination was not valid, the court must order reinstatement. However, since the employer cannot reinstate the employee to work due to the closing of the workplace, the employee must instead receive reinstatement compensation and an amount for the time that he or she is not reinstated to work. Therefore, the closing down of the workplace or liquidation of the company at the time of employee's application for reinstatement carries no significance, and as such cannot be regarded as impossibility of performance. The employer could be held liable for the legal consequences of not reinstating the employee to work.
An employee is entitled to request his or her own retirement in the course of a reinstatement lawsuit. Such a request during the course of proceedings will not change the fact that the employment contract was terminated by the employer. The proceedings must continue and the court must evaluate the validity of the termination
Employment of employee by another employer during proceedings
An employee may be employed by another employer during the course of a reinstatement lawsuit. In the event that the court rules that the employee is entitled to reinstatement and payments for the time that he or she is not reinstated to work as a result of proceedings, wages paid to the employee by another employer shall not affect the amount to be paid for the time that he or she is not reinstated. According to Court of Appeals precedent, wages paid to an employee by another employer shall not be deducted from the payment which is awarded for the time that the employee is not reinstated. An employee who is employed by another employer during the course of a lawsuit must apply to his or her former employer within 10 days for reinstatement upon the court's final ruling. Otherwise, the termination of employment shall be deemed valid; consequently, an employer shall not pay the employee reinstatement compensation or an amount for the time he or she is not reinstated to work.
As per the Labour Law, where an enterprise or a section of an enterprise is transferred to another person by a legal transaction, all employees employed in that enterprise or the relevant section are also transferred to the transferee, together with their existing rights and obligations arising from their employment contracts on the transfer date. Even if the employment contract of an employee is terminated prior to the transfer of business, where an employee initiates a reinstatement lawsuit within the prescribed term, the employment contract will be deemed to continue during the proceedings. If the court rules that the termination was groundless, the transferor employer must either reinstate the employee to work or pay him or her the reinstatement compensation together with the amount for the time between when he or she is not reinstated and the issuance of the labour court's final ruling.
Despite the workplace where the subject employee is employed being transferred during the proceedings, or the possibility that the defendant employer is in the process of liquidation upon the transfer of business and has no other workplace to reinstate the employee to work, this will not be regarded as impossibility of performance for the purposes of reinstatement to work - it will be clearly expected that the employee be reinstated to work by the transferee employer.
For further information on this topic please contact Melek Onaran Yüksel or Ezgi Özdemir at YükselKarkınKüçük by telephone (+90 212 318 05 05), fax (+90 212 318 05 06) or email ([email protected] or [email protected]).