In Labor Law No. 4857, issues such as how the employment contract can be terminated and which situations constitute a just cause for the employer or employee are regulated. In addition, our law has determined occupational safety rules to protect the worker, who is in a weaker position against the employer, and has limited the termination of the employer’s employment contract for some cases. Although there are provisions in the law that protect the worker, the protection here is not unlimited, and the employer cannot be forced to work with a worker he does not want. We briefly touched on the subject of reemployment in our previous article, and with this article, we will discuss the issue in more detail.
An employee whose employment contract is terminated based on an invalid reason can take advantage of job security and file a reemployment lawsuit. It should be noted here that the resigned employee cannot file this lawsuit. In order for a reemployment lawsuit to be filed, the following conditions must first be met;
- At least 30 workers must be employed in the workplace. In this calculation, all workplaces in the same line of business of the employer will be taken into account.
- The worker must have been working in this workplace for at least 6 months. Again, when calculating the 6-month seniority here, the time spent by the employee in all workplaces of the employer will be taken into account. In addition, the 6-month seniority requirement does not apply to workers working in underground works.
- There must be an indefinite-term employment contract between the worker and the employer. Although the employment contract is for a fixed period, if the job is for an indefinite period and the employer renews the contract every year, a case for reemployment can be filed.
- The termination of the employment contract should not be based on one of the valid reasons specified in the law.
- The worker who will file a reemployment lawsuit should not be one of the employer’s representatives and assistants who manage the whole of the enterprise, and the employer’s representatives who are authorized to recruit and dismiss workers and who refer and return the entire workplace.
If the employer sought all solutions in good faith before terminating the employment contract, but still it was not possible to continue the employment contract, that is, if the termination of the employment contract is the last resort for the employer, then the contract will be terminated for valid reason! Before the termination of the employment contract, it should be taken into account whether there is another position in which the worker can work. It is already clear that the termination of the employment contract is not the last resort when overwork is being done and new workers are being recruited!
According to article 19 of the Labor Law, the reason for the termination of the employment contract must be clearly and precisely communicated to the employee in writing. If a reason related to the employee’s behavior or productivity is reported as the reason for termination, the absence of the employee’s defense also gives the employee the right to file a reemployment lawsuit.
The employee must first apply to the mediator for reemployment within 1 month from the notification of termination of the employment contract without a valid reason. If a settlement cannot be reached as a result of the mediation activity, a reemployment lawsuit can be filed in the labor court within 2 weeks from the date of the last mediation report. If a lawsuit is filed without resorting to a mediator, the lawsuit will be dismissed out of procedure! In this case, mediation can be applied within 2 weeks from the notification of the finalized refusal decision.
While the burden of claiming that the termination is based on a valid reason lies with the employer, if the employee claims that the employment contract was terminated for another reason, he is obliged to prove this claim.
In the event that the employee is reinstated to work; Within 10 days from the finalization of the decision, the worker must apply to the employer to start work and the employer must start the worker within 1 month. If no application is made within this period, the termination made by the employer will become valid. If the employer responds positively to this application and the employee does not start work within a reasonable time, the employment contract will be deemed to have been terminated. In order not to have problems in terms of proof in practice, it would be more appropriate to apply for reemployment with a warning to be sent from a notary public.
If the employer does not start the employee within 1 month despite the employee’s application to start work, he will have to pay the compensation amount determined by the court in the amount of minimum 4 months and maximum 8 months’ wages. According to the settled decisions of the Court of Supreme Court, the amount of compensation for not starting work is determined as 4 months for a worker with a seniority of between 6 months and 5 years, 5 months for a worker with a seniority between 5 years and 15 years, and 6 months for a worker with a seniority of more than 15 years. Depending on the reason for termination, these amounts increase up to the maximum limit of 8 months.
In addition, regardless of whether the worker is started to work or not, the wage and other rights of the worker for the period he did not work for up to 4 months at the most will be decided. In other words, the employer will have to pay the employee a maximum of 4 monthly receivables for the period when the employee is not employed. While the employee’s employment in another workplace during the litigation process does not constitute an obstacle to the lawsuit, this situation will be taken into account in the compensations to be determined.
In the event that the worker starts to work, the employer will demand the severance and notice compensation paid for the termination that has become invalid. This amount can be deducted from the payment to be made to the worker.
First of all, it should be noted that even the termination of the employment contract, regardless of whether it is based on valid or invalid reasons, puts the worker in a difficult situation in financial and moral terms. On top of that, if this happens unlawfully by making you a victim, it is your most natural right to take advantage of the rights granted to workers by the law. In such cases, it is useful to seek help from a lawyer to get rid of the victimization you experience as soon as possible and with the least damage. You can always contact us to get support from our expert team.
