Reinstatement Action and Mediation in Turkey | İzmir

What we do in this area

The firm handles the reinstatement claim of an employee whose employment contract has been terminated, from the mediation stage until the judgment becomes final; on the employer side, it undertakes the defence of the termination file at the mediation table and in court. On both sides the work starts in the same place: assessing the notice of termination, the employee's seniority and workplace details and the correspondence preceding the termination against the job security provisions (Article 18 et seq. of the Labour Code No. 4857). The majority of files are conducted before the mediation offices and labour courts in İzmir.

This page is a sub-topic of the employment law tree. Severance, notice and overtime claims arising with the termination are dealt with under a separate heading: severance pay, notice pay and overtime claims. For pre-termination preparation on the employer side, see the termination for just cause and the defence procedure page.

Job security conditions

A reinstatement claim does not arise in every termination. The law requires four conditions to be met together:

Condition	Explanation
Thirty or more employees at the workplace	The employer's workplaces in the same line of business are counted together
At least six months' seniority	Periods spent at different workplaces of the same employer are combined; the six-month requirement does not apply to underground workers
An open-ended employment contract	The expiry of a fixed-term contract is not subject to reinstatement
The employee is not an employer's representative managing the whole enterprise	Workplace managers with authority to hire and dismiss are also outside the scope

Where the conditions are met, the employer must base the termination on a valid reason arising from the employee's competence or conduct, or from the requirements of the enterprise, the workplace or the work (Art. 18). The reason must be stated clearly and definitively in the notice of termination; in terminations based on the employee's conduct or performance, the employee's defence must also have been taken before the notice, subject to the Article 25/II exception (Art. 19). In the practice of the Court of Cassation (Yargıtay), the termination is reviewed only on the reason written in the notice; new reasons put forward later are not taken into account.

How the process works

An application is made to the mediation office within one month of service of the notice of termination; this is a forfeiture period, and an action filed before the mediation stage is complete is dismissed on procedural grounds (Article 3 of the Labour Courts Law No. 7036). The mediator concludes the process within three weeks of appointment; where necessary, this period may be extended by at most one week.

If agreement on reinstatement is reached in mediation, the report must record the date of reinstatement, the idle period pay and the monetary amount of the compensation payable if the employee is not reinstated (Art. 21 Labour Code). If no agreement is reached, an action is filed before the labour court within two weeks of the date of the final report.

In the action, the burden of proving that the termination is based on a valid reason lies with the employer; if the employee asserts that the termination is based on another reason, the employee must prove this (Art. 20). The court's judgment may be appealed to the regional court of appeal (istinaf); the decision of the regional court of appeal is final and no cassation appeal is available (Article 8 of Law No. 7036).

Consequences of the judgment

Where the termination is found invalid, the employee must apply to the employer requesting reinstatement within ten working days of service of the final judgment; if no application is made, the termination is deemed valid. If the employer does not reinstate the employee within one month, it pays the compensation for failure to reinstate determined by the court, amounting to at least four and at most eight months' wages. In either case, the employee is paid up to four months' wages and other entitlements for the period not worked until the judgment became final (Art. 21).

Time limits and points to note

The one-month application period runs from service of the notice of termination; in oral terminations, establishing the date of service is a separate matter of proof.
If mediation ends because a party fails to attend the first meeting without a valid excuse, that party bears half of the litigation costs it would otherwise recover even if wholly or partly successful, and receives half of the statutory counsel fee that would otherwise be awarded in its favour, under Article 3 of Law No. 7036 as amended by Law No. 7531.
No action may later be brought on matters agreed in the mediation settlement document (Article 18 of Law No. 6325); every item written into the document is assessed with this in mind.
The reinstatement action and the action for employment claims are heard in separate files; employment claims are stated as a separate subject of dispute in the mediation application.

How a file is handled at the firm is explained on the how we work page.

FREQUENTLY ASKED

What people ask about this area

Which workplace is the thirty-employee condition calculated by?

If the employer has more than one workplace in the same line of business, the number of employees is determined on the total of these workplaces (Article 18 of the Labour Code No. 4857). Employees on fixed-term and part-time contracts are included in the count; under the practice of the Court of Cassation (Yargıtay), the subcontractor's employees are not taken into account in the principal employer's headcount. The position as at the date of termination is decisive.

If agreement is reached in mediation, can a reinstatement action be brought later?

It cannot; no action may be brought on matters agreed at the end of mediation. A settlement document signed jointly by the parties, their lawyers and the mediator has the force of a judgment; otherwise, an enforceability annotation is obtained (Article 18 of Law No. 6325). If agreement is reached on reinstatement, the date of reinstatement, the idle period pay and the monetary amount of the compensation payable if the employee is not reinstated must be written into the document; if these entries are missing, no agreement is deemed to have been reached and the final report is drawn up accordingly (Art. 21 Labour Code).

The termination was found invalid but the employer is not reinstating me; what happens?

The employee must have applied to the employer within ten working days of service of the final judgment. If the employer does not reinstate within one month, the compensation determined by the court, amounting to four to eight months' wages, is paid together with up to four months' idle period pay (Art. 21 Labour Code). Under the practice of the Court of Cassation (Yargıtay), the termination is in that case deemed to have taken place on the date of failure to reinstate; severance and notice pay are recalculated on the wage and seniority as at that date.

How does an employee dismissed orally calculate the one-month period?

Where there is no written notice, the period runs from the date on which the termination was communicated to the employee, and the burden of proving that date falls on the employee. The date in the Social Security Institution (SGK) exit declaration, correspondence and witness testimony are used in this determination. If there is doubt about the date, the application is made on the basis of the earliest date; a late application results in the forfeiture period having expired.

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