The reinstatement case is a legal remedy for the return to work of employees who meet certain conditions and whose employment agreements have been terminated without a valid reason. The employee, whose reinstatement case is accepted, directs the request for reinstatement to the employer and may claim compensation in case of non-reinstatement. In this article, we will examine the conditions for filing a reinstatement case, the legal consequences that arise when the case is accepted or rejected, and the reinstatement cases based on unionism.

 

ESSENTIAL CONDITIONS FOR FILING A REINSTATEMENT CASE

To mention in bullet points, a worker who wants to file a reinstatement case must be within the scope of employment security. Workers who meet the following conditions fall within the scope of employment security:

• Being subject to Turkish Labor Law or Turkish Press Labor Law
• 30 or more workers are employed in the workplace
• Working in the workplace with at least 6 months seniority (no seniority condition is required for underground works)
• Working under an indefinite-term labor agreement
• The agreement has been terminated by the employer without a valid reason
• Not being an employer’s representative at a certain level

Some of these conditions are particularly important in practice.

– For example, in cases where the employee works with an indefinite-term employment agreement, which is one of the conditions for reinstatement, is not met, situations may arise where the agreement should be deemed as indefinite-term even if the employment agreement is concluded for a definite term in appearance. This is because there are a limited number of situations in which an employment agreement may be concluded for a definite term. An employment contract concluded for a definite term without one of these situations will be deemed to have been concluded for an indefinite term from the beginning and will not constitute an obstacle to the filing of a reemployment lawsuit.

– Or, in the procedure for termination of the employment agreement for valid reasons, the employer shall not be deemed to have terminated the agreement for valid reasons unless the strict formal conditions listed in Article 18 of the Labor Law are met. In this context, reasons such as the fact that the notice was not made in writing or that the employee’s defense was not received may constitute the basis for the claim of invalid termination in the reemployment case. It may also be claimed that the reasons for termination shown in the written termination notice do not reflect the truth and that the underlying reason for termination is discriminatory, such as religion, language, race, and similar reasons.

– In terms of the seniority requirement, if the worker has worked in more than one workplace of the same employer, it is sufficient to meet the 6-month requirement based on the total duration. It should also be noted that the seniority condition is not required for underground work. In terms of the number of workers (30 workers) requirement, the total number of workers in the employer’s workplaces operating in the same line of business is taken as the basis.

– In terms of employer representatives, not all employer representatives are excluded from the scope of employment security. Only the employer’s representatives who direct and manage the entire enterprise or administer the entire workplace and have the authority to hire and fire employees cannot file a reemployment case. There is no obstacle to filing a reemployment case for employer representatives who do not have these powers.

 

MEDIATION

Mediation is determined as a condition of litigation for reemployment cases. The employee who wants to apply for reinstatement must apply for mediation within 1 month from the day of receiving the notice of termination. If the parties cannot reach an agreement in mediation, a reinstatement case should be filed with this report in the court of labor within a period of 2 weeks from the date of issuance of the final report of non-agreement.

If the final report of the mediation is issued for an agreement, a reemployment case cannot be filed. However, if the date of reinstatement, the monetary amount of the compensation to be paid to the employee for the period during which the employee is not employed and the monetary amount of the compensation to be paid in case of non-reinstatement are not agreed upon in the content of the report, it is deemed that the agreement has not been reached. For the employee who does not start work on the specified date despite the mediation final report that includes all of these issues, the termination becomes valid and the employer is only liable for the legal consequences of the valid termination.

 

LEGAL PROCEDURE

If the parties cannot reach an agreement after the mediation process, a reinstatement case can be filed at the Labor Court. Reinstatement cases are subject to the procedure of simple trial and decisions are finalized on appeal to the regional court of appeal.

The employee whose reinstatement case is accepted must submit the request to the employer to start work within 10 working days from the finalization of the decision. If this period is missed, the termination will have the consequences of a valid termination.

If the employer does not reinstate the employee within 1 month following the employee’s request to start work, the employee is entitled to “compensation for not starting work”.

An employee whose reinstatement case is accepted and who applies to the employer for reinstatement within 10 days is entitled to compensation for up to 4 months of unoccupied time, whether or not he/she is reinstated. If the employee who requests to start work per the agreement is not started by the employer, the compensation for not starting work in the amount of 4-8 months’ wage will also be incurred.

On the other hand, the employee whose employment agreement has been terminated by paying seniority and notice indemnities is under the obligation to return these rights if he/she is reinstated. This is because with the acceptance of the reinstatement case, the invalidity of the termination of the employment agreement is recognized and the termination is abolished with all its consequences.

 

IN CASE OF TERMINATION BASED ON UNIONISM

In Turkish Law, the union membership of the employee does not constitute a valid reason for termination for the employer. This is stipulated in Article 18 of the Turkish Labor Law. Proving that the employment agreement was terminated for reasons related to the union has some consequences in favor of the employee. Namely, the employee who proves that he/she was dismissed for unionism can file a case for reinstatement even if he/she is not covered by employment security. For example, an employee who does not have 6 months of seniority at the workplace will also be able to file a reinstatement case in case of termination based on unionism.

In addition, the employee may file a claim for union compensation together with the reinstatement case or may file the union compensation case independently of the reinstatement case. In other words, it is not necessary to file a reinstatement case for the claim for union compensation to be granted.

Finally, it should be noted that the employee who is entitled to union compensation is not entitled to non-reinstatement compensation even if he/she is not reinstated. In other words, it is not possible to award non-reinstatement compensation together with union compensation.