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Re-Employment Actions With Practical Questions

 Writer:  Av. Alper YILMAZ

We usually encounter different questions or inaccurate things known as accurate with respect of the re-employment actions.

Therefore, I consider that purposes and results of the re-employment action should be analysed better before filing the action by providing short information concerning the questions we encounter.

I hope it will be beneficial…

1- What is a re-employment action?

It is, in the broadest sense, a declaratory action that checks whether the termination by the employer is valid or not.

2- May all employees file a re-employment action? 

No. In order to file this action, minimum 30 employees should work at the workplace, the employment contract should be concluded for an indefinite period and the employment contract should be terminated by the employer. Moreover, the employee who will file a re-employment action should have a seniority of minimum 6 months and should not be in the position of employer’s agent and/or employer’s deputy. A re-employment may not be filed in principle in all cases where the termination will comes from the employee (resignation, etc.) However, the cases in which this will is mutilated (mistake, fraud, duress, etc.) are exceptions. The burden of proof for mutilation of his/her will is on the employee. Moreover, the Code has made the necessity to conclude a fixed term contract conditional on some objective criteria. In other words, a fixed term contract shall not be concluded in every case. The Code requires the work to be the one that can be objectively carried out for a fixed term. Those contracts including a fixed term on paper without meeting this condition shall be deemed for an indefinite period in nature. And a re-employment action may be filed.

3- Within how long time do I need to file this action?

The re-employment action must be filed within 1 month as from the notification of the termination notice. The term to file this action shall commence not as from the termination date, but as from the notification of termination notice. For example; even if it is declared, in the termination notice notified as of today to an employee, which the contract will end after 30 days, the one-month term of litigation shall commence as from today when the notice is notified. In other words, the term of litigation shall not commence as from the 30th day when the termination will be realised.

4- My employer gave a termination notice by making me use dismissal notice. I still work at the workplace May I file an action?

Yes. If the conditions of re-employment action are met, your term of litigation shall commence even if you work at the workplace, as notice has been given.

5- I received a medical report in the term of litigation. Does it interrupt the term?

No, it does not. The term shall continue to run.

6- I objected to the Regional Directorate of Labour within the term of litigation. Would my term of litigation extend?    

No, it would not. The term shall continue to run.

7- At which date shall the requirement concerning a seniority of six months be determined?

It shall be determined according to the seniority at the date when the termination notice is notified. For example, an employee with a seniority of 5 months as of the date of notification of termination notice may not file a re-employment action.

8- My employer terminated the contract before a short period to the lapse of my seniority of 6 months. May I file a re-employment action in this case? 

No, because the condition concerning seniority of 6 months required by the Code is a compulsory element. If it is proved that the termination is made in bad faith, bad faith compensation in the amount of three times the notice pay may be demanded from the employer. The termination in bad faith shall be proven by the employee.

9- Do I have to receive termination notice?

It is not legally compulsory. However, it may be beneficial to receive notification in the meaning of beginning of the term of litigation. When receiving the notification, it is beneficial to add an annotation such as “all my rights reserved.” Moreover, it is crucial to write the received date correctly and not to antedate (in the nature to miss the term of litigation).

10- Would the term of litigation commence even if I did not receive notification of the termination notice?

If it is abstained from notification despite reading the content of the termination notice, the term of litigation may commence in case the employer takes the minutes proving this issue. Therefore, attention must be paid.

11- Due to which reasons may the employer dismiss me from work?

A binary distinction should be made in this issue. First is composed of the justified grounds included in Article 25 of the Labour Code, the other one is composed of the valid grounds. Terminations based on valid grounds are those made due to conduct, underperformance and requirements of the enterprise.

12- In which cases should my defence be taken?

If a termination is made due to underperformance and conduct, then the defence of the employee must be taken prior to the termination in response to the allegations against him/her. It is not compulsory to take defence for reasons of the requirements of enterprise. Moreover, it is not compulsory to take defence for the terminations on justified grounds made by the employer pursuant to Article 25 of the Labour Code.

13- What happens if no defence is taken?

If no defence is taken for a termination due to underperformance or conduct, the termination becomes a termination of invalid nature.

14- No reason was shown in the termination notice. It is only written, “You are dismissed pursuant to Articles 17 and 18.” Is it valid?

The termination reason has to be declared expressly and definitely in the termination notice. Otherwise, the termination is invalid.

15- Is it also compulsory to take defence for admonitions and warnings?

No, it is not compulsory.

16- I was admonished on some matter. What can I do?

If you do not accept the points stated in the admonition, you may send the employer an answer to admonition explaining the situation and stating the cases you do not accept.

17- It is said that the one with three admonitions may be dismissed from work. Is it true?

The principle is when the person maintains his/her similar actions and conducts   despite the admonition on the same matter. Likewise, it is when he/she fails to carry out the task he/she is obliged to carry out, although it is reminded (admonished) to him/her. Here, the important thing is not the number, but the nature, of the admonition. The important thing is the event(s) upon which the admonition is based. Accordingly, in case the similar actions are effected despite the admonition and if the workplace order is also damaged, a termination may arise.

Upon an admonition, the penalty/sanction concerning that action is deemed to have been imposed. Subsequently – in case of absence of repetition of the action -, no dismissal from work may be made on the same matter.

 

18- Is it a termination reason to receive medical report and to be frequently absent from workplace?

According to the decisions of the Court of Cassation, if the employee is frequently absent from workplace and the workplace order is damaged, such a case may give rise to termination based on valid reason.

19- How long does a re-employment action take?

The Code provides for that such actions shall be finalised definitely within three months. However, the actions are finalised in 1 year or more in average owing to the work load of the courts.

20- To what it is held in a re-employment judgement?

In case of acceptance of the action, if the employee applies to the workplace within ten days upon the finalised judgement, it is firstly held to a wage of unemployed period amounting to a wage of 4 months and to the social rights arising in this period. Moreover, if the employer does not re-employ the employee within one month, it will be held to a compensation amounting to a wage of 4 to 8 months for failing to re-employ him

21- Shall the file be deemed to have been finalised when the court of first instance renders its judgement?

No. The parties have an 8-day period for appeal. If the parties do not appeal the judgement in this period, the judgement shall be deemed to have been finalised. If they appeal it, the file shall be referred to the Court of Cassation.

22- What does an appellate review mean?

The party considering that the judgement is against the law has a right to appeal the judgement within the statutory period. The Appellate Court is the Court of Cassation. The Court of Cassation has the jurisdiction to review the file on merits and procedure, and even to decide on merits for the re-employment actions.

23- In other words, even if I win the action of first instance, the Court of Cassation has the jurisdiction to review the file on merits and decide conclusively. Is it true?

Yes. Accordingly, the decision rendered by the Court of Cassation rather than the judgement of the court of first instance shall be final and determinative.

24- May an objection be raised against the decision rendered by the Court of Cassation?

The decisions rendered by the Court of Cassation for the re-employment judgements are of the final nature. Accordingly, objection may not be raised. However, if a conviction has emerged that a mistake of fact was made, this matter may be alleged to be rectified.

25- When does my period to apply to the employer commence once the judgement is finalised?

According to the expression of the Code, it should be applied to the work within 10 workdays as from the notification of the finalised judgement.

26- Does the fact that I have a medical report in the period of ten workdays necessary for application to the employer suspend the period?

There is no such provision in the Code. Thus, the employee has to make this application either by himself or through his/her attorney-at-law.

27.- How do I need to make the application to the employer? 

No rule concerning this issue is provided for in the Code. The important point is whether the employee proves that he/she has applied to the work in due course of time. Accordingly, it is important that the application be made in writing. It may be done in writing in ways such as through a public notary or via telegraph, and in a way to prove that it is received by the other party.

28.- Does the time to elapse during the mailing affect my period to apply to the employer?

The important point is to make the application to the employer within due course of time. The time elapsing during the mailing does not affect the period. For example; for the re-employment application to be made through a public notary, the date of submission of the documents to the public notary shall be considered as the date when the re-employment application is made. Even if these documents are received by the employer after 10 workdays, there will be no loss of right as the first application is made within due course of time.

29- May I make the re-employment application to the attorney-at-law of the employer?

No, because the employer’s attorney-at-law might not have such a power. Therefore, the most guaranteed means is to make this application directly to the employer.

30- In what way would you advise me to apply to the employer? Letter, telegraph, public notary, etc.?

The important point is to apply in writing and to prove it. However, I consider in many cases that sending the re-employment application via public notary is the most guaranteed means for purposes of removing practices in bad faith. Although it is somewhat costly, it would be beneficial to do as such.

31- Until when may the employer re-employ me? 

According to the Code, the employer is to re-employ the employee within 1 month as from the re-employment application. The one-month period shall commence as from the date when the employer receives the employee’s re-employment application. For example, the one-month period shall begin at the date when the re-employment application is made via the public notary, but as from the date when the application sent via the public notary is served on the employer.

32- Is the fact that I work at another workplace an obstacle for me to make a re-employment application?

No, it is not. However, if the ex-employer decides to re-employ, it may cause you to resign from your present workplace.

33- I did not make my re-employment application. May I still receive, with respect to re-employment, my compensations for unemployed period and for non-re-employment? 

No, you may not. This application is compulsory. If it not made, then you shall not be entitled to any compensation stated in the re-employment judgement.

34- I made my re-employment application within due course of time. And the employer did not re-employ me or answer me within due course of time. May I receive the compensations stated in the re-employment judgement? 

Yes. In case of non-re-employment within one-month period, you shall be entitled to the compensations held in the re-employment judgement.

35-Can you explain my compensations in some more details?

We have stated that two types of compensation shall be ruled if the employer does not re-employ you within due course of time. The first one is the wage for the unemployed period amounting to a wage of 4 months and to the social rights arising in this period; the second one is the non-re-employment compensation amounting to a wage of 4 to 8 months. For example, let us assume that it is, as a result of a re-employment action, held by the court to a 4-month wage for the unemployed period + to a non-re-employment compensation of 4-month wage. The 4-month unemployed period wage is constituted by the wage and the social rights in the 4-month period following the first termination date of the employment contract. When we assume that the first termination date was 11.11.2011, the employer shall calculate and pay the employee the amount of wages and social rights to be paid to him/her if he/she worked at the workplace until 11.03.2012. This 4-month period shall be deemed within the employee’s seniority. The 4-month non-re-employment compensation shall be paid by calculating the actual wage at the date when the employee is not re-employed (in other words, by calculating on the basis of the wage he/she could receive if he/she worked there). This amount shall be exempt from the income tax and only a stamp duty shall be deducted.

36- Is there another amount I may demand other than the unemployed period compensation and non-re-employment compensation? For you have stated that the 4-month period is deemed within the seniority.

You are entitled to demand an extra severance pay as the 4-month period is deemed within the seniority. If there has been an increase in wage at the non-re-employment date, the extra notice pay and the extra annual leave pay may also be demanded on the basis of the wage at the non-re-employment date pursuant to the decision of the 9th Civil Chamber of the Court of Cassation dated 21.06.2010 with file no. 2008/27000 and decision no. 2010/19572. Moreover, if the notice period or annual leave period increases when the 4-month period is added to the seniority, the wage of these increasing periods may also be demanded.

37- Should my 4-month unemployed period wage be notified to the Social Security Institution?

Yes. The employer should make the necessary notices to the Social Security Institution in compliance with the duration stated in the provisions of the Communiqué on Employer Practices.

38- The employer accepted my re-employment application. However, I did not start working. May I still receive my compensations?

The name of this action is the re-employment action. Accordingly, you need to be sincere for the re-employment demand. If the employee does not start working despite an invitation of the employer, he/she may receive no compensation provided for in the re-employment judgement.

39- In other words, if I do not start working upon an invitation of the employer, I may receive nothing; is it correct?

Yes, exactly.

40- I started working upon an invitation of the employer, what will happen in this case?

In case it is started working, the 4-month unemployed period wage shall be set off from the severance pay and notice pay paid at the first termination date pursuant to the Labour Code. If the severance pay and the notice pay are more than the 4-month unemployed period wage, the employer may demand their reimbursement.

41- In other words, I might be indebted to the employer in such a case, is it right? How can the employer demand it from me?

Yes. You may reach a settlement with the employer and agree upon the deduction of this debt from your wage at certain monthly amount. If it is not possible, the employer may demand his/her credit by having recourse to seizure or litigation.

42- The employer invited me. However, he/she assigned me a different task. Shall he/she be deemed to have re-employed me in this case?

The action is a re-employment action. It is maybe more accurate to say, “action to reinstate.” Accordingly, it is a rule that you be reinstated to the post for which you have been working at the dismissal date. The proposals for such posts other than this post which have heavier terms and conditions shall not be deemed as re-employment.

42- What will happen if the post at my dismissal date is abolished?

If there is objectively such a case, then a task should be assigned under the terms and conditions similar to those of this post.

43- Will I need to start working at the new place in case the company changes its address in this process?

If there is a moving to an address other than the one at the first termination date, you will need to take office where the company is. If an extra travel allowance falls on the employee in such a case, he/she may demand its payment from the employer.

44- My action has lasted for longer than 1 year. And I am unemployed in this period. Should not the employer give me the wage of this one-year period?

No. For the minimum and maximum compensation figures determined by the Code are fixed. Lengthening of the trial shall not mean holding to a compensation amount above them.

45- Then, how shall the interest be calculated? Shall it be calculated from the date of action or from the date of judgement?

This action is a declaratory action. In other words, the court determines invalidity of the termination. Therefore, the interest shall commence to run neither from the filing date nor from the decision date. The interest for the unemployed period wage shall commence to run at the date of application to the employer upon finalisation of the judgement. The interest for the non-re-employment compensation shall become due at the date of non-re-employment.

46- Which interest rates are imposed for the unemployed period wage and the non-re-employment compensation?

The highest interest rate imposed on deposits shall be imposed for the unemployed period wage and the legal interest shall be imposed for the non-re-employment compensation.

47- Do I need to reimburse the severance pay and notice pay I received at the termination date if I do not start working at all despite invitation of the employer to work?

No. The termination shall be in the nature of a valid termination and reimbursement shall not be in question.

48- Is it reasonable for the employer to re-employ the dismissed employee at the end of this action? If he/she will re-employ me, why did he/she dismiss me then?

The re-employment action is not an action entitling directly to compensation. The compensation liability shall be in question in case the employer does not re-employ the employee. In any case, the court also holds primarily to re-employment. Then, the employer who completely implements the judgement and re-employs the employee does in fact the thing what needs to be done.

49- What I understand from the above-mentioned answer is that it is not a compensation action and I am not entitled to compensation in every case. Is it true?

Yes, exactly. The scenarios according to the application to the employer within due course of time, the employer’s invitation to work, the employee’s re-employment or non-re-employment may vary as we have stated above.

50- What happens to such expenses as defendant’s attorney fee, charges, etc. when I lose the action?

When the action is lost, you are to pay the attorney fee to the defendant’s attorney-at-law according to the current tariff if the defendant is represented by an attorney-at-law. Moreover, the court expenses paid by you shall be borne by you as well as the court expenses paid by the defendant shall also be imposed on you.

51- What is mutual rescission? May I file a re-employment action in such case?

Mutual rescission is the reconciliation of wills of the employer and the employee on termination of the contract. In other words, both parties demand the mutual termination of the contract. According to the recent practices of the Court of Cassation, in cases where the employee obtains reasonable benefit (effecting additional payments) on termination of the contract in addition to the severance pay and notice pay to be received, the mutual rescission agreement is deemed valid and a re-employment action may not be filed. It is observed in practice that reasonable benefit at various amounts are paid in addition to severance pay and notice pay.

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