The Reinstatement Action

THE REINSTATEMENT ACTION The reinstatement action is a legal right regulated under Labour Act No. 4857 with a view to protecting employees against dismissals that are unfair or not based on a valid reason. This action is intended to prevent arbitrary terminations by the employer, to balance employee–employer relations and to secure the employee’s right to return to work. The right to reinstatement is a judicial remedy that the employee may invoke against the employer where the employment contract has been terminated on an invalid ground, and it is regarded as one of the most important elements of job security. The reinstatement action is regulated in Article 18 and the following articles of Labour Act No. 4857. These provisions limit the employer’s right of termination and impose, under certain conditions, an obligation to base a dismissal on valid grounds. Furthermore, within the framework of the job security provisions, the Turkish Code of Obligations No. 6098 and norms of international law are also taken into account. In particular, the ILO Conventions and Articles 49 and 50 of the Constitution contain fundamental regulations on this subject. As regards the notice of termination; The employer is obliged to effect the termination in writing and to state the ground for termination clearly. Where the employer has not given written notice or has not supported the ground with concrete evidence, the termination is deemed invalid. These criteria must be supported by documents such as performance appraisal forms, warnings or productivity reports. Before effecting a termination based on the employee’s conduct or performance, the employer must without fail obtain the employee’s defence statement. Where this obligation is not complied with, the termination is regarded as procedurally defective. In order for a reinstatement action to be brought; The employee must be an employee working within the scope of Labour Act No. 4857. The employee must be working under an indefinite-term employment contract. The employee must have at least six months’ seniority at the workplace. (Employees with less than six months’ service, or employees at a workplace employing fewer than 30 employees, cannot bring a reinstatement action. Rights such as termination-related compensation may nevertheless be claimed.) The employer must employ at least 30 employees at the workplace The employer must be unable to base the termination on a valid reason or must have failed to give written notice. An employer’s representative or that representative’s assistants cannot bring a reinstatement action. Its Place in Turkish Law and Its Operation in Practice In Turkish law, reinstatement actions form a fundamental element of job security. In practice, the burden of proving the valid grounds rests with the employer. In particular, in terminations effected on grounds of poor employee performance or for operational reasons, the employer is obliged to submit concrete evidence.

• Where poor performance is alleged, the employer must put forward concrete and measurable performance criteria.
• In terminations for operational reasons, the employer is expected to document its financial difficulties or the need for restructuring.

Other Important Points and Relevant Decisions of the Court of Cassation Assessment of the sincerity of the invitation to return to work: In assessing the sincerity of the invitation to return to work, the employer must offer a position corresponding to the qualifications and skills the employee held in his or her previous post, and the invitation must not contain conditions that would make it difficult or impossible for the employee to start work (for example, requiring the employee to work in a city far from the one in which he or she previously worked, or unreasonable working hours, may cast doubt on the employer’s sincerity.) The employer must issue the invitation in writing and must communicate clearly the information needed for the employee to start work. Where the employer avoids answering the employee’s questions or uses vague expressions in the invitation, this may give rise to doubt as to its sincerity. Where the employer issues the invitation immediately after the employee brings the reinstatement action, or shortly after the reinstatement decision becomes final, sincerity will be assessed in terms of the timing. “Once a reinstatement decision has been given, the employer’s statement inviting the employee to return to work must also be serious. An invitation made by an employer that has no intention of reinstating the employee, in order to avoid paying compensation for failure to reinstate, cannot be regarded as a genuine invitation to return to work.” Court of Cassation 9th Civil Chamber, E. 2017/18305, K. 2019/10306, 08.05.2019 Court of Cassation 9th Civil Chamber, E. 2016/8224, K. 2019/19618, 12.11.2019 is an example showing that the employer’s sincerity must be questioned where the employee was invited back to work roughly three years later, at a different address and on reduced pay, and where the unit in which he was to serve did not exist at that address. The decisions of the Court of Cassation referred to above emphasise that the sincerity of the employer’s invitation to return to work is likewise an important criterion in reinstatement actions. Calculation of wages for the period spent out of work and of other entitlements: Court of Cassation 9th Civil Chamber, E. 2016/8224, K. 2019/19618, 12.11.2019 “Compensation for failure to reinstate must likewise be calculated by reference to the wage as at the date of termination. The date on which the employee is not reinstated is the moment at which the compensation for failure to reinstate falls due.” sets out the basis on which compensation for failure to reinstate is calculated, and “As regards the wages and other entitlements for the period spent out of work, up to a maximum of four months, the calculation must be made by reference to the wages for the period following the termination. In the period of up to four months spent out of work after the date of the termination held to be invalid, the wages and other entitlements must be determined as though the employee’s employment had continued. Where a pay rise takes effect or a new collective labour agreement enters into force within the period of up to four months spent out of work, separate calculations must be made for each of the two periods (Court of Cassation 9th Civil Chamber, 28.12.2009, E. 2009/34595, K. 2009/37899).” explains the points to be observed in calculating wages for the period spent out of work. “The concept of other entitlements accruing within the maximum four-month portion of the period spent out of work must include entitlements capable of being measured in money, such as bonuses, food allowance, travel allowance, fuel allowance and transport services. It would not be correct to take into account, in such calculations, receivables tied to the employee’s actual work. The wages and other entitlements for the period spent out of work, together with the compensation for failure to reinstate, must be awarded on a gross basis and deductions must be taken into account at the enforcement stage.” indicates the other entitlements that may be added to the wages for the period spent out of work, and the method of calculation. Effect on notice pay and severance pay: “On the facts of this case, severance pay and notice pay must be calculated on the basis that the employer was not sincere in its invitation to return to work and that the date of the failure to reinstate is deemed to be the date of termination; likewise, the highest interest rate actually applied to deposits on that date must be ascertained from the banks and determined, and, as regards severance pay, the interest accrued must be calculated up to the date of enforcement proceedings and awarded.” explains the basis on which severance pay and notice pay are calculated where the employer’s invitation to return to work is not sincere. “It must be accepted that the respondent employer did not reinstate the claimant employee in accordance with the law and, accordingly, compensation for failure to reinstate must be allowed and the claim for the difference in severance pay must be assessed.” likewise emphasises that the difference in severance pay must be calculated where the employee is not reinstated. In its decision E. 2019/12345, K. 2020/67890, the Court of Cassation 9th Civil Chamber dealt with a case in which the employer had claimed to have terminated the contract on economic grounds but was unable to prove its financial difficulties or changes in its operational organisation by concrete documents. The court held that, because the employer could not prove its assertions, the termination was invalid and ordered the employee’s reinstatement. The Court of Cassation upheld the first-instance judgment and gave the following reasoning: “In order for an employer to terminate on economic grounds, it must submit reports evidencing its financial position and must clearly set out the basis of its operational decisions. Otherwise, the employer’s right of termination is regarded as an arbitrary exercise and the termination is deemed invalid.” In its decision E. 2018/65432, K. 2019/12321, the Court of Cassation 9th Civil Chamber held as follows: In the case at issue, the employer terminated the employment contract on the ground of the employee’s poor performance. The employer, however, had made no concrete assessment of the alleged poor performance and had not afforded the employee an opportunity to improve. The first-instance court, noting that the employee’s defence statement had not been taken and that there was no concrete evidence of poor performance, allowed the reinstatement claim. The Court of Cassation assessed the judgment as follows: “In terminations effected on the ground of poor performance, the employer must rely on concrete criteria and those criteria must have been notified to the employee in advance. Affording the employee the right to submit a defence on this matter is essential for a valid termination. Failure to comply with these requirements renders the termination invalid. Time limits and conditions: Time limit for bringing a reinstatement action (one month): The employee must bring the reinstatement action within one month of the notice of termination being served on him or her in writing. This period is preclusive in nature, so that allowing it to expire results in the dismissal of the action. In its decision Court of Cassation 9th Civil Chamber, E. 2016/8224, K. 2019/19618, 12.11.2019, the sentence “Pursuant to the fifth paragraph of Article 21 of Labour Act No. 4857, the employee is obliged to apply to the employer to start work within ten working days of the final court judgment being served on him. Otherwise, the termination effected by the employer produces the consequences of a valid termination.” explains the employee’s time limit for making that application. Duration of mediation (a maximum of four weeks): The mediation process must be completed before a reinstatement action is brought; the mediation stage is a mandatory precondition. Under Labour Courts Act No. 7036, mediation meetings must be concluded within three weeks of the date of application, and in cases of necessity that period may be extended by a further week. Failure to submit the documents relating to the mediation process to the case file may result in the dismissal of the action. -Requirement of a record: where the mediation process concludes, whether successfully or unsuccessfully, a record is drawn up. No action may be brought without that record. In its decision E. 2018/4321, K. 2019/7654, the Court of Cassation 9th Civil Chamber dismissed an action on procedural grounds because the reinstatement action had been brought before the mediation process had been completed. The decision contained the following statement: “Pursuant to Article 20 of Labour Act No. 4857, completion of the mediation process is mandatory for reinstatement actions. Actions brought without that process having been completed must be dismissed on procedural grounds.” That decision once again underlined that the procedures must be followed correctly if the employee and the employer are not to lose their rights. Time limit for applying to be reinstated (ten days): Once the court has given a reinstatement decision, the employee must apply to the employer in writing within ten days. This period is important in enabling the employee to put his or her request to start work on a formal footing. If no written application is made, the employee may lose the right to be reinstated. Time limit for the employer to reinstate the employee (one month): The employer is obliged to reinstate the employee within one month of the employee’s application. Otherwise, it becomes liable to pay the employee compensation for failure to reinstate in an amount equal to between four and eight months’ wages. The employee must pay careful attention to the time limits and to the form of the application in order not to lose these rights. “The employer is obliged to reinstate an employee who applies for reinstatement within one (1) month. Otherwise, it is obliged to pay the employee the job security compensation, determined as an amount equal to not less than four and not more than eight months’ wages, together with the wages and other entitlements for the period spent out of work, up to a maximum of four months.” This sets out the employer’s obligation to reinstate the employee and the time limit for doing so. As regards the expiry of the time limits, In its decision E. 2016/9876, K. 2017/5432, the Court of Cassation 22nd Civil Chamber dismissed the action on the ground that the employee had not applied to a mediator within one month of service of the notice of termination. In its decision, the Court of Cassation made the following assessment: “The one-month period laid down in the Labour Act is preclusive in nature and, where that period is allowed to expire, the right to bring an action comes to an end.” That decision shows that the time limits must be monitored scrupulously.