The re-employment lawsuit is a legal remedy regulated under the Labor Law ("Law") and provides protection in favor of the employee. This lawsuit filed by the employee who claims that his/her employment agreement has been terminated without cause or for an invalid reason and that he/she has not received his/her labor rights, is a job security regulation whose conditions and procedure are specified in the Labor Law No. 4857. However, considering the dynamic structure of working life, the provisions of the Law are insufficient, and the case law of the Court of Cassation is of great importance in this regard.

CONDITIONS OF RE-EMPLOYMENT LAWSUIT

The conditions for the re-employment lawsuit are as follows:

1. The employee must be working under an indefinite-term employment agreement.

The employee who is working under a fixed-term employment contract is not entitled to file a re-employment lawsuit. However, if a fixed-term employment agreement is renewed more than once without a substantial reason, the employment agreement shall consider to be of indefinite duration from the beginning, and the employee who is party to such an employment agreement may also file a reemployment lawsuit.

2. There must be at least 30 employees working at the workplace where the employee was working when the employment agreement was terminated.

Judicial decisions have clarified how to determine the number of employees working at the workplace. Such that, if the employer has more than one workplace in the same line of business, the employees working in all workplaces shall be included.

3. The employee must have at least 6 months of seniority in the workplace.

While calculating the seniority of the employee, the "cases counted as working time" in Article 66 of the Labor Law shall be taken into consideration. The six-month seniority of the worker is calculated by combining the periods spent in one or different workplaces of the same employer. If the employer has more than one workplace in the same line of business, the number of employees working in the workplace is determined according to the total number of employees working in these workplaces. No seniority requirement is required for employment working underground.

4. The worker must not have worked as the employer's representative.

In order to file a lawsuit for re-employment, the employee must not have worked as the employer's representative or the employer's assistant. The employer's representative is defined in Article 2 of the Labor Law: Any person who acts on behalf of the employer and takes part in the management of the business, workplace and enterprise is called the employer's representative. Pursuant to Article 18 of the Labor Law, the employer's representatives and assistants who manage and direct the entire enterprise and the employer's representatives who manage and direct the entire workplace and have the authority to hire and fire employees are exempted from the right to file a re-employment lawsuit.

5. The employment agreement must not have been terminated for a valid reason.

In order to file a lawsuit for re-employment, the employment agreement must not have been terminated for a valid reason. Article 18 of the Labor Law defines what constitutes a valid reason for termination:

The employer who terminates the indefinite-term employment agreement of an employee with at least six months of seniority in workplaces employing thirty or more employees must be based on a valid reason arising from the employee's competence or behavior or the requirements of the enterprise, workplace or business.

In order for the employment agreement to be terminated for valid reason, it must be based on the above conditions. In addition, the employee's defense must be taken and the reason for termination must be clearly and precisely notified. Although it is not specified in the Labor Law, it will be more convenient in terms of proof if the termination notice is made in writing in case of a possible dispute. The notice periods specified in the Law will start from the notice of termination.

The Labor Code also specifies what does not constitute a valid reason:

In particular, the following shall not constitute a valid reason for termination:

  1. Trade union membership or participation in trade union activities outside working hours or during working hours with the consent of the employer.
  2. Serving as a workplace union representative.
  3. Applying to administrative or judicial authorities against the employer in order to pursue his/her rights or fulfill his/her obligations arising from the legislation or contract, or participating in the process initiated in this regard.
  4. Race, color, sex, marital status, family obligations, pregnancy, birth, religion, political opinion and similar reasons.
  5. Absence from work during the periods stipulated in Article 74 when women workers are prohibited from working.
  6. Temporary absence from work due to illness or accident during the waiting period stipulated in subparagraph (b) of paragraph (I) of Article 25.

PROCEDURE AND CONSEQUENCES OF FILING A REINSTATEMENT LAWSUIT

The employee whose employment contract has been terminated must apply to the mediator in accordance with the provisions of the Labor Law within one month from the date of notification of the termination notice with the claim that no reason was given in the termination notice or that the reason given was not a valid reason. If no agreement is reached at the end of the mediation activity, a lawsuit can be filed at the labor court within two weeks from the date of the final report. Since mediation is mandatory in labor law disputes, if a lawsuit is filed directly without applying to the mediator, the re-employment lawsuit will be rejected procedurally.

The re-employment lawsuit to be filed after the mediation process is completed shall be directed by the employee against the employer and the employee shall claim the invalidity of the termination and demand re-employment. However, the employee may demand 4 months' wages for a maximum of 4 months of "idle time". The burden of proof that the termination is based on a valid reason belongs to the employer.

If the court decides that the termination is invalid, the employee must apply to the employer to start work within 10 working days from the date of notification of the decision. If the employee fails to apply, the termination shall become valid.

The employer shall be obliged to employ the employee within 1 month upon the employee's application to start work. If the employer fails to hire the employee upon the employee's application, the employment agreement shall be deemed to have been terminated at the end of this 1 month and the employer shall be obliged to pay compensation to the employee in the amount of at least four months' and at most eight months' wages. This compensation amount is also determined within the scope of the re-employment lawsuit.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.