A reinstatement lawsuit is filed by an employee whose employment contract was unjustly terminated by the employer. The purpose is to enable the employee to return to their job under current conditions. However, it is essential to note that the employee must be covered under job security provisions to initiate a reinstatement lawsuit. Job security, established under international agreement compliance procedures, is a critical right granted to employees to prevent unjust termination by employers. Due to the causal relationship between job security and reinstatement lawsuits, the conditions required to benefit from job security also apply to filing a reinstatement lawsuit.
Conditions for Filing a Reinstatement Lawsuit
Mandatory Mediation Application According to Article 20 of the Turkish Labor Law No. 4857: "An employee whose employment contract is terminated may apply to mediation within one month from the date of receiving the termination notice, claiming that the reason for termination is either not stated or invalid. If no agreement is reached through mediation, the employee may file a lawsuit within two weeks from the date the final mediation report is issued." Accordingly, a reinstatement lawsuit cannot be filed without completing the mandatory mediation process. Failure to comply will result in the lawsuit's procedural dismissal.
Employment at a Workplace with 30 or More Employees As per the precedents of the Court of Cassation, the employee must be working at a workplace employing 30 or more workers on the termination date to benefit from job security provisions. When determining the number of employees, all individuals employed under fixed-term or indefinite-term contracts, as well as full-time or part-time employees, must be included. However, interns, apprentices, and subcontractor workers are excluded from the count.
Minimum Six-Month Seniority To benefit from job security, an employee must have a minimum of six months of seniority at the workplace. The six-month period is calculated based on the continuation of the employment relationship rather than the actual working days. An employee dismissed solely to prevent them from meeting the six-month requirement may claim the invalidity of such termination under the principles of good faith.
The Employee Should Not Be an Employer Representative or Assistant Managing the Entire Operation The critical criterion here is not whether the employee holds a representative title but whether they possess the authority to manage the entire operation. Employees with such authority cannot benefit from job security, while those without this authority can.
The Employment Contract Must Be Terminated by the Employer Without a Valid Reason The employer bears the burden of proof regarding the validity of the termination reasons. Termination must align with the principle of "last resort," meaning the employer must explore alternative solutions before opting for dismissal. A termination without valid and substantiated reasons will be deemed invalid.
The Employment Contract Must Be Indefinite Under Article 18 of the Turkish Labor Law No. 4857, job security provisions apply only to employees working under indefinite-term employment contracts. Fixed-term contract workers are excluded from filing reinstatement lawsuits.
Consequences of a Reinstatement Lawsuit
If the court decides in favor of the employee, the following steps are necessary:
The employee must apply to the employer within 10 business days from the date of the court's final decision, expressing their intent to return to work. This application must be genuine and demonstrate a willingness to resume employment. Although there is no mandatory form for the application, a written notification via a notary public is recommended for ease of proof. Failure to apply within the 10-day period will render the termination valid, nullifying the effects of the lawsuit.
The employer must reinstate the employee within one month of their application. If the employer refuses, they are obliged to pay a compensation for failure to reinstate the employee. Under Article 21 of the Labor Law, this compensation ranges between four to eight months' worth of the employee's gross salary, as determined by the court. Additionally, the employee is entitled to wages for up to four months covering the period they were not employed.
Conclusion
In summary, filing a reinstatement lawsuit requires a detailed evaluation of the specific case, including the employee's job definition, workplace characteristics, and other relevant criteria. Particular arrangements may exclude certain workers from job security provisions or impose different conditions based on the employment contract type. Therefore, seeking legal assistance is crucial to prevent potential losses of rights.
