PRECEDENTIAL PROBLEMS FACED AT REEMPLOYMENT APPLICATIONS AFTER FINAZLIZATION OF REEMPLOYMENT LAWSUITS
In accordance with Turkish Law, employee’s employment security rights are secured with reemployment lawsuit. At cases where labor contract of employee terminated unlawfully, employee can request his/her reemployment (compensation in case of not being accepted to job) and fee for the period he/she was not able to work due to unlawful termination. But even though court rules for reemployment, employee must act in accordance with time periods and conditions regulated at law. Otherwise, employee might not benefit from the earned rights even though the verdict of court regarding reemployment lawsuit is in favor of the employee. In this context, regulation regarding employee to make an application to the employer within 10 days after service of finalized court verdict of verdict to him/her; directly effects employee’s rights and it has been seen that this regulation is interpreted differently by different chambers of Supreme Courts.
LEGAL REGULATIONS REGARDING THIS MATTER, ARE REGULATED AT ARTICLE 21/6 OF LABOR LAW NUMBERED 4857
At article 21/6 of Labor Law; it has been regulated that “For re-engagement in work, the employee must make an application to the employer within ten working days of the date on which the finalized court verdict was serviced to him. If the employee does not apply within the said period of time, termination shall be deemed valid, in which case the employer shall be held liable only for the legal consequences of that termination.”
Since this 10-day period is lapse of time, if the employee does not make the application within this period, termination shall be considered as a valid termination and the employer only be held responsible from legal consequences of it. At this case, employee cannot claim any fees for the period he/she did not work and compensation for not being accepted back to work, but employee can still claim severance and notice pay.
“FINALIZED COURT VERDICT” STATED AT ARTICLE 21/6 WILL BE DEFINED IN ACCORDANCE WITH RELEVANT LEGAL REGULATIONS.
In accordance with provisional article 3 of Code of Civil Procedure numbered 6100; since 427. and 454. articles of Code numbered 1086 with the amendments dated 26.09.2014 made with law numbered 5236 shall be applicable to the finalization of court decisions prior to the July 20th 2016 which is the date of Regional Court of Justices’ entry into force; even though Regional Court of Justice and Code of Civil Procedure numbered 6100 entered into force, a decision ruled before July 20th 2016 will finalize after revision of decision if appeal and revision of decision is applicable to the decision in the first place.
For decisions subject to Code of Civil Procedure numbered 6100; these decisions will finalize after they go through appeal and appellate procedures.
In addition to this; for lawsuits regarding collection of labor claims filed at the time when Code numbered 1086 was in force, revision of decision by Supreme Court is not possible.
With the amendment published on Official Gazette on October 25 2017 amending Article 11 of Code on Labor Courts numbered 7036 and last paragraph of Article 20 of Labor Code numbered 4857; it is regulated that for decision given by the Court, if an appeal application made, Regional Court of Justice will render it’s decision urgently and as final. again in accordance with the article 38/a of Code numbered 7036, it is regulated that this amendment will enter into force in January 1st 2018. Finally, in accordance with provisional article 1 of the Code numbered 7036, it is regulated that decisions rendered by courts of first instance before this Code numbered 7036 enter into force, will be subject to the laws in force at the time of decision.
Within the light of this amendment; for decisions regarding reemployment rendered before January 1st 2018, parties can firstly apply to regional courts of justice and then can appeal before Supreme Courts for the decisions of Regional Court of Justice. But; for decisions rendered after January 1st 2018, parties can only apply to Regional Court of Justice so it will not be possible for them to appeal the decision before Supreme Courts.
DIFFERENT CHAMBERS OF SUPREME COURT HAVE DIFFERENT LEGAL OPINIONS ON STARTING DATE OF 10-DAY REEMPLOYMENT APPLICATION PERIOD
9th Civil Chamber of Supreme Court who is competent for reemployment lawsuits have the opinion that court decision with finalization statement should be serviced to claimant employee in order that time of lapse regarding 10-day application period can start (9th Civil Chamber of Supreme Court, 09.11.2015, 2014/18378E., 2015/31595K.)
But on contrary; Supreme Court Assembly of Civil Chambers, 7th and 22th Civil Chambers of Supreme Court which are competent for handling labor suits; ruled that finalization statement serves as a statement only therefore it does not have any legal effect on finalization of the decision; finalization shall occur as a result of decision of approval and there is no obligation regarding service of finalization statement (22th Civil Chamber of Supreme Court, 01.11.2012, 2012/19092E., 2012/24055K.)(7th Civil Chamber of Supreme Court, 24.06.2013, 204/17333E., 2015/12949K.)(Supreme Court Assembly of Civil Chambers, 01.10.2014, 2013/22-1158E., 2014/743K.)
But in the recent decisions of 22th Civil Chamber of Supreme Court, it can be seen that Chamber adopted view of 9th Civil Chamber of Supreme Court and abandon their view regarding “there is no obligation regarding service of finalization statement” (22th Civil Chamber of Supreme Court 28.02.2017, 2017/5592E., 2017/4066K.)
CONCLUSION
In the light of above leading cases; opinions of 9th Civil Chamber differs from opinions of 7th Civil Chamber and Assembly of Civil Chambers regarding our matter. 9th Civil Chamber of Supreme Court accepts that court decision with finalization statement should be serviced to claimant employee in order that time of lapse regarding 10-day application period can start in accordance with Article 21/6 of Labor Law with taking “interpretation in favor of employee” and protection of employee” principles into account. On contrary (even though changed stance in the recent period) 22th Civil Chamber of Supreme Court and Supreme Court Assembly of Civil Chambers accepts that servicing decision of approval or the final decision of Regional Court of Justices to the employee shall finalize the decision and there is no need for servicing finalization statement.
In this context; with facing these opinion differences between chambers of Supreme Court and the fact that even chambers can change their own opinions time to time, when the matter is approached from employee side, in order to not to face any loss at rights, it will be applicable to make reemployment application to employer within 10 days after service of approval decision or the final decision of Regional Court of Justices without waiting service of finalization statement.