The provisions of Articles 18-21 of the Labor Law No. 4857 provide "job security" to workers with at least 6 months of seniority in workplaces employing 30 or more workers. A reinstatement lawsuit may be filed against terminations that are not based on valid reasons.
Job Security Conditions
- 30 or more workers work in the workplace (total of workplaces affiliated with the same employer)
- The worker must have at least 6 months of seniority
- The employment contract is for an indefinite period
- The worker should not be the employer's representative or assistant
Valid Reasons (Labor Code Art. 18)
- Inadequacy of the worker: Poor performance, lack of skills
- Worker's behavior: Constantly arriving late, neglect of duty (provided that it is not contrary to morality and good will)
- Requirements of the business:Economic crisis, decrease in production, change of organization, elimination of the position
Reasons Not Considered Valid (Labour Law, Article 18/3)
- Union membership or union activity
- Reporting employment complaints
- Parenting, pregnancy, maternity leave
- Gender, race, religion, language, political opinion
- Becoming a workplace representative
Process
1. Mandatory Mediation
A mediator shall be applied within 1 month following the notification of termination notice. If it cannot be understood, a lawsuit must be filed within 2 weeks from the last report.
2. Reinstatement Case
The Labor Court examines whether the termination is based on a valid reason. The burden of proof is on the employer
Decision Results
If the court considers the termination invalid:
- The worker applies to the employer to start work within 10 working days
- If the employer does not employ the employee within 1 month, he/she pays job security compensation equal to 4-8 months' gross wage
- Whether the employer hires the employee or not, idle time fee for up to 4 months is paid
Supreme Court 22nd and 9th HD Approach
Supreme Court of Appeals 9th HD, in termination due to "necessities of the business", the employer must prove that it complies with the "principle of last resort". In other words, alternative solutions (short-time work, transfer to another position) should be tried first; Direct termination is generally considered invalid.
Cumulative Rights
If the reinstatement case is won, severance and notice pay are out of scope. these are considered already paid. However, the idle time fee is added to the seniority.
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