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I am Being Dismissed by the Reason of Pregnancy or Maternatiy, What are My Rights?

Av. Alper YILMAZ
alperytr@gmail.com
Unfortunately, we encounter the dismissals due to pregnancy and maternity in business life. Of course in most situations, it is not stated in the termination notice that the employee is dismissed because of pregnancy or maternity, and the dismissal is based on the false reasons such as performance, operational reasons, etc.
In this article, we shall search for the answer of the question “I am being dismissed by the reason of pregnancy or maternity, what are my rights regarding Turkish Labor Law?”.
First of all, it shall be good to indicate the rule briefly. The dismissal merely by the reason of  pregnancy and maternity definitely does not pose a valid reason for the termination. In other words, the terminations with the abovementioned reasons comes to mean the terminations with invalid reasons. All in the same breath, this kind of terminations constitute contradiction to the principle of equal treatment stated in Article 5 of the Labour Code, and the female employees have a right to demand her deprived rights and the compensation valued at the wage up to four months as indicated in the aforesaid Article.
In case of a termination with the aforesaid reason, the workplaces and the employees who are subject to the job guarantee within the scope of the Labour Code will be able to bring reemployment lawsuit within a month as from the notification of the termination notice. If the employee can not benefit from the provisions of the job guarantee, she has the right to claim compensation for bad faith damages valued at three times of the notification period in such terminations with the aforesaid reasons.
As stated above, the reasons for terminations which are merely false or stated on paper shall not be vaild and  giving one-down position to the female employee, who has given birth, after returning from the maternity leave and the employer’s not giving the permission for the request of maternity leave without pay are practices contrary to the Labour Code.
In discussing the subject, we shall continue with the decisions delivered by the Supreme Court within this framework.
In the decision of the Supreme Court subject to analysis, the plaintiff employee requested her legal leave without pay from the company after having given birth; however, the defendant company rejected this request and discharged the employee on the ground of the plaintiff’s absence from the job. Upon the termination, the plaintiff employee brought the reemployment lawsuit. On the issue, the Supreme Court delivered a decision as follows[1]:
“In other words, in case the female employee, who has given birth, request to take her maternity leave without pay and this request is rejected by the employer, she may take the maternity leave without pay by giving a notice to the employer with the decision given by herself. In the concrete case, the plaintiff employee gave birth, after taking her paid maternity leave subsequent to the birth, she requested the maternity leave without pay but got rejected by the employer. Besides, it is understood that the annual leave payment was also made to the plaintiff subsequent to the termination of the labour contract of the plaintiff, thus even the rest of the annual paid leave was not allowed to be taken by the plaintiff. Under the mentioned points, the Court was required to accept the case and deliver a judgement on reemployment of the plaintiff on the ground that the labour contract was terminated with invalid reasons by the employer not by the employee, delivering the dismissal judgment with the abovementioned ground is erroneous and therefore necessitated to be reversed.”
 
In another case subject to the decision of the Supreme Court, the labour contract was terminated by the defendant company upon the plaintiff employee was offered one-down position which was impossible to accept due to her taking maternity leave according to the justification of the finalized reemployment judgement and upon the refusal thereof by the employee. Thereupon the employee brought a lawsuit in terms of the compensation of discrimination and the deprived rights. The Supreme Court, which examined the subject, came to a conclusion as follows[2]:
“On the other hand, the three female employees, who are the witnesses for the plaintiff, explained that the plaintiff was wished to be appointed to a one-down position after the maternity leave and that the new duty would require the frequent travels out of the city. Again the witnesses for the plaintiff stated that there were pressures by the employer towards not making the employee take the maternity leave and one of the witnesses explained that she quit the job by this reason and the other witness for the plaintiff stated that she got taken on the job by having promoted after giving birth because of the fact that she did not take the maternity leave.
The plaintiff employee took the prenatal maternity leave on 06.09.2004, gave birth on 24.09.2004 and took the postnatal maternity leave until 12.02.2005. In the case file, there are charts which contain the number of working employees in the defendant’s workplace according to the sex and marital status between 15.02.2005 and 15.09.2006, and it is understood that on 15.02.2005, 72 of 179 female employees are married and 107 of them are unmarried and that on 15.09.2006, even though the number of  female employees rose to 248, the number of married female employees fell back to 65.
According to the abovementioned statements, the content of the case file and especially the justification of the finalized judgement of the reemployment, it is understood that the plaintiff employee was offered one-down position, which was impossible to accept, due to her taking maternity leave, and upon refusal thereof by the employee, the labour contract was terminated. When the situation incurred by the plaintiff because of taking the maternity leave and motherhood is examined within the scope of the Labour Code no. 4857, it must be accepted that the conditions of the compensation of discrimination are met. Again according to the same provision, the demand for the deprived rights is also appropriate.”
 
In the last case subject to the decision of the Supreme Court, the employee was dismissed by the reason of her pregnancy and demanded the compensation for the bad faith damages. The Supreme Court, which examined the subject delivered a decision as follows[3]:
“This provision of the Constitution and the International Conventions is reflected also to the Labour Code no. 4857, which was not in force yet at the date of the termination of the labour contract. According to Article 5 of the aforesaid Code, in terminating the labour contract, the employer can not take direct and different action because of sex and pregnancy. On the other hand the sanction has been provided for in the same Article.
In Article 13/C-3 of the Code no. 1475, the compensation for the bad faith damages has been regulated. It is transfer of Article 2 of the Civil Code to the Labour Code. Accordingly, in case there is a legally recognised right, that the right is exercised in defiance of the objective good faith rules and that the other party suffers damage or a risk of damage is posed because of abuse of the right, the right of termination is deemed to be abused.
In the concrete case, it is understood from the witnesses for the plaintiff and the course of events that the labour contract of the plaintiff employee was terminated due to her pregnancy. Therefore the termination is malicious. The abovementioned dismissal of the case, while it was necessary for the Court to accept the demand of the compensation for the bad faith damages, necessitated the reversal.”
 
Consequently, the termination of the labour contract by the reason of pregnancy and maternity constitutes the termination with invalid reasons. The employee, whose labour contract is terminated in this way, can bring a reemployment lawsuit. If the employee can not benefit from the provisions of the job guarantee, she can demand from the employer the compensation valued at four-month wage and the deprived rights due to the contradiction to the equal treatment, or the compensation for the bad faith damages included in the Code. Therefore, I am of the opinion that it will be appropriate to pay attention to these points in the  terminations by the employers and to comply, to the utmost, with the rights of female employee who is pregnant or gives birth.


[1] Court of Cassation, 9th Civil Chamber, Decision Date: 13.07.2009, File No. 2008/36349, Decision No. 2009/20734
[2] Court of Cassation, 9th Civil Chamber, Decision Date: 29.11.2011, File No. 2009/19835, Decision No. 2011/46440
[3] Court of Cassation, 9th Civil Chamber, Decision Date: 28.04.2005, File No. 2004/25538, Decision No. 2005/14932
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