A reinstatement lawsuit is a type of legal action filed by an employee whose employment contract has been terminated by the employer without a valid reason, with the aim of returning to their job. This lawsuit is one of the most important rights granted to employees under job security provisions and arises within specific timeframes and conditions from the moment the employment contract ends. Frequently encountered in practice, this type of lawsuit has significant implications both for the employee’s right to resume work and for the legality of the employer’s reason for termination. In this article, we will examine the basis of the reinstatement lawsuit, the conditions for filing it, the legal deadlines, and its place in practice.
Legal Definition
The reinstatement lawsuit is regulated under Article 20 of Labor Law No. 4857. The first paragraph of the relevant article states:
“A worker whose employment contract has been terminated must apply to a mediator within one month from the date of notification of termination for reinstatement, claiming that no reason was given in the termination notice or that the stated reason is not valid, in accordance with the provisions of the Labor Courts Law. If no agreement is reached at the end of the mediation process, a lawsuit may be filed in the labor court within two weeks from the date the final report is prepared. If the parties agree, the dispute may also be submitted to a private arbitrator within the same period instead of the labor court. In case of procedural dismissal of the lawsuit due to filing directly without applying to a mediator, the dismissal decision is notified to the parties ex officio. An application to the mediator can be made within two weeks from the ex officio notification of the final dismissal decision.”
This regulation establishes that a worker who has received a termination notice without a valid reason can file a reinstatement lawsuit. However, this right is subject to specific procedures and conditions.
LEGAL REQUIREMENTS
1- The employment contract must be indefinite: Employment contracts are divided into two types: fixed-term and indefinite-term contracts. A contract is considered indefinite when the employment relationship is not tied to a specific duration. Written contracts based on objective conditions, such as fixed-term work or the completion of a specific task, are regarded as fixed-term employment contracts. (Labor Law, Art. 11)
The first fundamental requirement for filing a reinstatement lawsuit is that the contract must be indefinite. It is not possible to file a reinstatement claim under a fixed-term contract. The exception to this rule is when a fixed-term contract is consecutively renewed multiple times without a substantial reason. As stated in the second paragraph of the relevant article, consecutive fixed-term contracts without a valid reason are not permitted; otherwise, the contract is considered indefinite.
2- At least 30 employees must work at the workplace: Another requirement for filing a reinstatement lawsuit is that the employer must employ 30 or more workers at the workplace as of the termination date. When calculating this number, only the employees at the specific workplace of the claimant are not considered. According to Labor Law, Art. 18/4, “If the employer has multiple workplaces within the same sector, the number of employees at the workplace is determined based on the total number of employees working at all such workplaces.” Therefore, if the employer has multiple workplaces in the same sector, the total number of employees across all workplaces is used to determine the employee count for this purpose.
3- The employee must have at least six months of seniority: Labor Law Article 18/1 states, “In workplaces employing thirty or more workers, if an employer terminates the indefinite-term employment contract of an employee with at least six months of seniority, the termination must be based on a valid reason arising from the employee’s competence or behavior, or the requirements of the business, workplace, or job. The seniority requirement does not apply to workers employed in underground work.” As explicitly stated in the law, another requirement for filing a reinstatement lawsuit is that the employee must have at least six months of seniority. The only exception to the six-month seniority requirement is underground workers, who can benefit from reinstatement rights even without six months of seniority.
4- The termination must not be based on a valid reason: The employer terminating the employment contract must base the termination notice on a valid reason. A valid reason may arise from the employee’s competence or behavior, or the requirements of the business or job. If the termination is not based on a valid reason, the employee has the right to file a reinstatement lawsuit. Cases where the termination is not based on a valid reason are specified in Article 18/3 of the law.
Labor Law Article 18/3: In particular, the following circumstances do not constitute a valid reason for termination:
a) Union membership or participation in union activities outside working hours, or during working hours with the employer’s consent.
b) Acting as a union representative at the workplace.
c) Applying to administrative or judicial authorities against the employer or participating in such proceedings in order to pursue rights or fulfill obligations arising from legislation or contracts.
d) Race, color, gender, marital status, family responsibilities, pregnancy, childbirth, religion, political opinion, or similar reasons.
e) Failure to attend work during periods prohibited for employing female workers as stipulated in Article 74.
f) Temporary absence from work due to illness or accident during the waiting period specified in Article 25(I)(b).
Similarly, it is legally required that the termination notice be made in writing and that the reason for termination be stated clearly and explicitly. (Labor Law Article 19) If the termination is not made in writing, or if the reason for termination is not clearly and explicitly stated in the written notice, the termination by the employer is considered invalid. Furthermore, the relevant law states that if the reason for termination arises from the employee’s behavior or performance, it is mandatory to obtain the employee’s defense.
LAWSUIT PROCESS AND MEDIATION
The employee whose employment contract has been terminated must apply to a mediator within one month from the date of the termination notice to request reinstatement if no reason was given in the notice or if the stated reason is claimed to be invalid. If no agreement is reached during the mediation process, the employee must file a lawsuit in the labor court within two weeks from the date the final mediation report is prepared. Applying to a mediator is legally mandatory, and the application period begins from the date the termination notice is delivered to the employee. This period is valid for termination notices made in writing; if the employer provides the termination notice verbally, the time to file a lawsuit does not start to run.
RESULTS OF A REINSTATEMENT LAWSUIT
1- If the case is dismissed: If the court finds that the claims of the employee who filed the reinstatement lawsuit are not justified and concludes that the employment contract was terminated for a valid reason, the case will be dismissed. In this situation, the employee is obliged to pay all court costs and other judicial expenses.
2- If the case is accepted: The burden of proving that the dismissal was based on a valid reason lies with the employer. If the employer fails to present a valid reason, or the reason provided is not valid, the court will accept the employee’s claim and declare the dismissal invalid. The employee must apply to the employer to resume work within ten business days from the notification of the final court or arbitration decision. If the employee does not apply within this period, the dismissal by the employer is considered valid, and the employer is only responsible for the legal consequences of the dismissal. (Labor Law Article 21/4)
Upon the employee’s application, the employer is obliged to reinstate the employee within one month. If the employer does not reinstate the employee within one month after the application, the employer must pay compensation equal to at least four months and at most eight months of the employee’s salary. The amount of compensation to be paid in case of non-reinstatement is specified separately in the court ruling.
Competent and Jurisdictional Court
For reinstatement lawsuits, the competent court is the Labor Court; in locations where Labor Courts are not established, the Civil Court of First Instance, acting in the capacity of a Labor Court, is authorized to hear the case. The jurisdictional court is the court of the defendant’s residence at the time the lawsuit is filed or the court of the location where the relevant action took place.
SUPREME COURT DECISIONS
“…The plaintiff, relying on the final decision declaring the employer’s dismissal invalid, sought to claim severance and notice pay, and also asserted that he applied for reinstatement, requesting that the four-month period of unemployment stated in the reinstatement decision be counted toward his service period. The court ruled that since the plaintiff did not apply for reinstatement within the statutory 10-day period, he could not request reinstatement; therefore, his right to claim severance pay, notice pay, unemployment period wages, and non-reinstatement compensation would lapse, and dismissed the case. However, given that the reinstatement decision has become final, the invalidity of the dismissal is undisputed, and the plaintiff is unquestionably entitled to severance and notice pay. Whether the plaintiff applied to resume work is relevant only for the unemployment period wages and non-reinstatement compensation, and has no effect on the severance and notice pay claims related to the invalid dismissal. In other words, the entitlement to severance and notice pay linked to the dismissal declared invalid by the reinstatement decision is indisputable. Moreover, the file confirms that the plaintiff applied to the employer on 10/12/2013, and the dismissal of his claims based on an inappropriate and legally unfounded reason was erroneous and required reversal…” (Supreme Court, 9th Civil Chamber, Case No: 2014/36225 E., 2016/7503 K., 28.03.2016)
“…According to Article 8/1-a of the Labor Courts Law No. 7036, which was published in the Official Gazette on 25.10.2017 and came into force, decisions given in cases filed to contest dismissal notices under Article 20 of Law No. 4857 cannot be appealed. Furthermore, paragraph 4 of Temporary Article 1 of the same law stipulates that decisions issued by first-instance courts before the law came into effect are subject to the legal remedies in force at the time of the decision. Accordingly, decisions regarding reinstatement cases issued by first-instance courts after 25.10.2017 are final at the regional appellate court level, and no appeal can be filed against these decisions…” (Supreme Court, 9th Civil Chamber, Case No: 2022/2239 E., 2022/3916 K., 23.03.2022)
“…In the present case, the plaintiff, who worked as a security officer, had their employment contract terminated by the defendant subcontractor due to the termination of the contract for private security services between the defendants by the main defendant employer. The employer’s decision to terminate the private security services contract between the defendants is an operational decision and, as explained above, is not subject to a suitability review. According to the case file, after the termination of the private security services contract, no organic link between the firm awarded the same workplace contract and the defendant subcontractor has been alleged or proven. In this situation, the termination of the private security services contract inevitably results in surplus employment at the defendant subcontractor company, and judicial review should only be conducted within the principle of termination as a last resort. Accordingly, at the time of the contract termination, it is important to determine whether the defendant subcontractor had other workplaces and whether the plaintiff could be considered for these workplaces in order to apply this principle. The court erred by rendering a decision without conducting the necessary examination and investigation in this regard.
The task to be carried out is to investigate whether the defendant company had other workplaces where the plaintiff could be employed at the time of termination and whether any new hires with the same qualifications as the plaintiff were made shortly before or after the termination date. If no other workplace or new hire exists, it should be accepted that the termination of the private security services contract constitutes a valid reason for dismissal, resulting in the dismissal of the case. If such options exist, the court should rule the termination invalid for failing to adhere to the principle of termination as a last resort…” (Supreme Court, 22nd Civil Chamber, Case No: 2017/32846 E., 2017/9824 K., 27.04.2017)
“…Union compensation is regulated under Article 25 of the Trade Unions and Collective Bargaining Agreements Law No. 6356. The first paragraph stipulates that workers’ employment cannot be made conditional upon joining or not joining a particular union, maintaining membership in a union, or resigning from membership. The second paragraph of the same article provides that the employer cannot make any distinction between workers who are union members and those who are not, or between workers belonging to different unions, in terms of working conditions or termination of employment.
If it is determined that an employment contract was terminated for union-related reasons, according to Article 21 of Labor Law No. 4857, the worker is entitled to union compensation regardless of whether they apply to the employer for reinstatement or whether the employer reinstates them. However, if the worker is not reinstated, the compensation specified in the first paragraph of Article 21 of Law No. 4857 is not granted. The worker’s failure to file a lawsuit under the provisions of Law No. 4857 does not prevent a claim for union compensation.
The union compensation, equivalent to the worker’s one-year gross salary determined in a reinstatement case, is established independently of the application to the employer and reinstatement conditions; therefore, the salary at the date of the termination, deemed invalid, should be used. In the present case, the plaintiff’s employment contract was terminated by the employer, and the reinstatement lawsuit filed by the plaintiff was accepted on the grounds that the termination was union-related, with the decision becoming final. The plaintiff applied to the employer within the legal period for reinstatement, but was not reinstated within that period.
The expert report relied upon by the First Instance Court erroneously calculated the union compensation based on the salary on the date the plaintiff was actually not reinstated (13.08.2018) instead of the salary at the termination date (02.06.2017), requiring reversal. The concept of “other rights” accrued during the maximum four-month idle period should include monetary benefits such as bonuses, food allowances, and fuel allowances. All monetary values the worker would have earned if they had continued working should be considered. However, payments that only arise from actual work, such as overtime, holiday pay, or sales-related commissions, cannot be considered within the “other rights” for the maximum four-month idle period.
In the present case, the employer provided a transportation service to workers, and the court added the monetary value of this service to the idle period compensation. However, during the four-month period when the worker did not actually work, this service would not have been used, so the worker did not suffer a positive income loss nor incur any financial detriment. For example, this does not apply to meal allowances: if the employer provides meals, the worker could not benefit from them during the four-month idle period and would have to cover meal costs personally. Similarly, since the worker did not actually work, they did not incur any income loss nor were they obliged to cover transportation costs. Therefore, adding the monetary value of the transportation service to the idle period compensation was incorrect, and the decision was rightly reversed on this ground as well…” (Supreme Court, 9th Civil Chamber, Case No: 2022/4307 E., 2022/5784 K., 11.05.2022)
Lawyer. Gökhan AKGÜL & Lawyer. Yasemin ERAK
ANTALYA WORKER LAWYER – ANTALYA LABOR LAW ATTORNEY
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