TC
HIGH
GENERAL ASSEMBLY REFERENCE
NO: 2015/22-1608
DECISION NO: 2018/448
DECISION DATE: 7.3.2018
Pursuant to Articles 18 and subsequent articles of the Law on Workers Returning to Work After Military Service, a lawsuit cannot be filed for reinstatement to work.
SUMMARY: 1.) Return to military service: Workers who are not paid during their return to military service cannot file a lawsuit for reinstatement based on the provisions of Article 18 of the Labor Law.
2.) If the employer does not reinstate the employee, they must pay the former employee who requested reinstatement compensation equal to three months’ salary. (Labor Law 31/4)
“Return to military service is regulated in Article 18 of the Labor Law for non-working employees. Based on these provisions, they cannot file a lawsuit for reinstatement. They cannot benefit from job security. Since the employment contract was terminated due to military service, the employment contract does not remain suspended during active military service, and in this case, the employer, who does not have the right to return to military service, cannot terminate the employment contract.”
“An employer who fails to fulfill the obligation to enter into an employment contract with former employees who have completed their military or legal service, but does not hire them even if the conditions are met, is subject to compensation sanctions rather than administrative fines. Article 31 of the Law, indeed. According to the fourth paragraph of the article, if the employer does not fulfill the obligation to hire, the employer pays compensation in the amount of three months’ salary to the former employee who renews the employment contract despite the required conditions, to the former employee who requests to be hired.”
Following the trial between the parties regarding the “dismissal” case, the Ankara 10th Labor Court, with its decision dated 07.03.2014 and numbered 2013/1747 E, upon the defendant’s attorney’s request for review of the decision numbered 22 upon appeal, ‘s ruling numbered 2014/242 K. accepting the case; the Court of Appeals’ ruling dated 05.05.2014 and numbered 11565/2014 E. with ruling number 2014/11387 K.;
“…The plaintiff, the employer … Inc. left the workplace to perform his military service in February, July, March, and August 2012, completed his six-month military service in February 2013, verbally stated that he wanted to return to work, but the employer stated that they could not hire him because there were no vacancies. had worked at the defendant’s workplace for two years and five months and had been employed indefinitely under the defendant, and therefore requested a decision to reinstate him to his job after completing his military service. He suffered damages because his request for reinstatement was not accepted.
T he defendant’s representative, the prosecutor, and the plaintiff signed an indefinite employment contract on November 1, 2011, and the plaintiff resigned on July 31, 2012, to perform his military service and left the company. The plaintiff left again in February 2013 to return to work after completing his actual military service, but the defendant requested that the case be dismissed on the grounds that the plaintiff did not have the right to file a lawsuit for reinstatement.
Th e court ruled that the plaintiff’s failure to return to military service and start work was unlawful.
The decision was appealed by the defendant’s attorney.
Article 31/4 of Labor Law No. 4857 states, “Employees who leave their jobs due to military or legal assignment must be hired by the employer immediately if they wish to find work within two months of the end of the assignment, if there is a vacancy in their old job or a similar job, or for the first job that becomes vacant, giving preference to other applicants under the existing conditions. If the employer fails to fulfill the obligation to conclude an employment contract even if the necessary conditions are met, the employer shall pay the former employee who requested re-employment compensation equivalent to three months’ salary.”
According to the file contents, it is understood from the employment contract that the plaintiff worked as a technician at the defendant’s workplace between March 9, 2010, and July 31, 2012, that the plaintiff left the job due to military service, and that he purchased his severance pay. The plaintiff’s return from military service is subject to the establishment of a new employment contract, regardless of whether the employer has hired him or not. Therefore, it is not possible for the plaintiff to request reinstatement.
Article 31/4 of the Labor Law No. 4857 mentioned above imposes an obligation on the employer to hire an employee after completing military service and stipulates that compensation shall be paid as a penalty if this obligation is not fulfilled.
Accordingly, the court considered the plaintiff’s request to return to military service pursuant to Article 31/4 of Labor Law No. 4857 as a refusal to start work, and therefore, it was erroneous to decide in writing to dismiss and overturn the case…
Pursuant to this ruling, the court, after a retrial, overturned the previous decision on the grounds of insufficient reasoning and returned the case file to its original location.
After it was understood that the decision to uphold the ruling was appealed during the review by the General Assembly of the Law and after the documents in the file were read, the following was discussed:
Decision
Article 31/4 of Labor Law No. 4857 stipulates that it concerns the request for reinstatement of the employment contract of an employee who is not hired upon application after completing military service.
The plaintiff claimed that he left his job at the defendant’s workplace to perform his military service, that his request to return to work at the workplace after completing his military service was rejected by his employer on the grounds that there were no personnel available, and that he requested a decision to reinstate him to his job at the workplace.
Th e defendant’s representative argued that the plaintiff resigned from his job on July 31, 2012, to perform his compulsory military service, received severance pay, left his job, and received severance pay, and that the plaintiff’s application before completing his military service was not a valid application under Article 31 of Labor Law No. 4857. and that the plaintiff’s former job or similar vacant position did not fall within the scope of the article due to the plaintiff’s military service, and therefore the case should be dismissed.
The court ruled that although the case was voluntarily filed as a case for reinstatement to military service, it was a case filed due to non-employment, and that the task at hand, as in a return to work case, was to determine the unlawfulness of not commencing military service. It was understood that, pursuant to Article 31/4 of Labor Law No. 4857, the case was to determine the unlawfulness of the plaintiff not commencing military service. Accordingly, it was determined that the plaintiff’s application was valid while he was on housing leave, that the defendant’s employer did not allow the plaintiff to start work despite the employee’s eligibility to accept the case, and that the plaintiff’s failure to start work was unlawful in the defendant’s case for return to military service.
Upon the defendant’s attorney’s objection to the decision, the decision was overturned by the Special Chamber Presidency for the reason stated in the heading section above.
The court ruled that if the plaintiff’s request for reinstatement to military service is not initiated, the employer’s termination of the trial process is invalid and therefore unlawful. It further ruled that if the violation is not remedied when determining the penalty to be imposed for the resolution of the case, the court must issue a ruling on the determination of the penalty.
If the plaintiff’s request for reinstatement is initiated, the court ruled that the plaintiff would be reinstated in accordance with Article 31/4.26 of the Name Rights Law No. 4857, provided that no violation of the law was found. Even if it is accepted that the request was exceeded for a moment, it stated that the determination that the defendant employer acted contrary to this article must be made based on Article 6100 of the Code of Civil Procedure No. 6100. According to the article, the court may rule less than the claim, and in this context, the case was evaluated and concluded as a claim for determination of illegality, and it was stated that the claim was not exceeded on the grounds that it was met in the previous decision.
The defendant’s attorney objected to the decision to resist.
Th e dispute before the General Assembly of the Court of Appeals and the legal grounds for resistance are concrete, and since the plaintiff’s severance pay, paid to him for his work to secure his discharge from active military service and the reinstatement of employees who had been dismissed from military service, was not immediately brought up in the case in question, the defendant did not have the authority to determine the case from the outset, and therefore it is not possible to consider the employer’s actions unlawful. The outcome of the case here hinges on whether it should be dismissed under Article 31/4 of Law No. 4857.
Before proceeding to the merits of the court decision, it is necessary to examine the operation of the law at the General Assembly meeting, taking into account where the special department was violated, to determine whether it is possible to reach a conclusion with the court decision, and to make the fact that the merits of the law were not discussed and evaluated as a result of the appeal review given by the General Assembly a subject of preliminary examination.
Although the case was filed by the General Assembly with a request for reinstatement, the request was actually made under Article 31 of Labor Law No. 4857. The basis for the case and the request is Article 18 of the same Law, and it is based on the same Law. It has been unanimously accepted that the termination envisaged in the articles is invalid and cannot be considered reinstatement, therefore the decision is not final and there is no preliminary issue.
First of all, it is necessary to briefly discuss legal benefit, declaratory action, the principle of adherence to the claim, and the employer’s obligation to conclude an employment contract.
I. Legal Interest and Declaratory Action:
In civil procedure law, legal interest is the plaintiff’s interest in filing a lawsuit (or requesting legal protection from the court) in order to seek legal protection from the court.
The plaintiff must have a legitimate (protected) interest under the rules of law when filing a lawsuit, must need a court decision to obtain their right, and must not unnecessarily occupy the court (Arslan, R.; Reference: Khanagasi, E., Davadaki Menfaat Sahipleri [Interested Parties in the Case], Ankara 2009, preface VII).
The General Assembly Meeting of June 24, 1992, and decisions numbered 1992/1-347 E.- 1992/396 K. and May 30, 2001, numbered 2001/14-443 E.- 2001/458 K., also mention the need for legal protection (Rechts-schutzbedürfnis) is also mentioned. When requesting legal protection from the courts, there must be an interest worthy of protection.
On the other hand, this legal interest must be “legal and legitimate,” “direct and personal,” “innate and current” (Hanagasi, et al. … 135).
During the period when the repealed Code of Civil Procedure No. 1086 was in force, doctrine and court decisions accepted the need to find a legal interest when filing a lawsuit as a “condition for filing a lawsuit.” This condition is “one of the general conditions for filing a lawsuit regarding the subject matter of the lawsuit” and is considered among the “positive conditions for filing a lawsuit” because its existence is necessary for the examination of the merits of the case and for a decision on the merits.
Indeed, the same view was expressed by the General Assembly of the Law on November 24, 1982, numbered 1982/7-1874 E.-914 K.; and by the General Assembly of the Law on June 5, 1996, numbered 1996/18-337 E.-542 K. It was also adopted in the decisions dated November 10, 1999, numbered 1999/1-937 E.-946 K., dated May 25, 2011, numbered 2011/11-186 E. 2011/352 K., and dated February 1, 2012, No. 2011/10-642 E.-38 K.
The Civil Procedure Code No. 6100, which entered into force on October 1, 2011, also adopted the exact application of this doctrine and court decisions, and the plaintiff’s legal interest in filing a lawsuit is regulated under Article 114 titled “Conditions for Filing a Lawsuit.” It is evident that this is explicitly considered one of the conditions for the lawsuit in subparagraph (h) of the first paragraph of the article.
There is no doubt that considering the principle of legal interest as a condition for a lawsuit will contribute to the conduct of the proceedings in accordance with the purpose of the trial and the principle of procedural economy.
Based on this principle, as a condition for bringing a lawsuit, the existence of a legal interest should be considered automatically and at every stage of the proceedings, as a rule, at the time the lawsuit is filed, within the framework of the evidence, events, or facts submitted to the court by the parties in the case file. Indeed, this will ensure that the “freedom to seek justice” stipulated in Article 6 of the European Convention on Human Rights (Convention for the Protection of Human Rights and Fundamental Freedoms), which is also part of our domestic law, is exercised in accordance with the rules of decency; this will provide a safeguard against the abuse of the right to sue by filing unjustified lawsuits. Legal interest in bringing a lawsuit
must be a legitimate interest accepted by the legal system, must relate to the right holder bringing the lawsuit, and must still exist at the time the lawsuit is filed. Furthermore, the lawsuit to be filed must be of such a nature as to eliminate the potential danger. Legal interest can be said to exist if a court decision is needed at that moment for a person’s right to be realized. If a court decision is not needed, legal interest cannot be said to exist (Pekcanitez, H., Atalay, O., Özekes, M.; Hukuk Muhakemeleri Hukuku [Law of Civil Procedure], Ankara 2011, p. 297).
It is also necessary to examine how the concept of legal benefit will be reflected in a declaratory action in the resolution of the dispute.
Lawsuits are divided into two categories according to the legal protection they seek from the court: actions for performance, declaratory actions, and legal actions.
In actions for performance, the court is asked to order something to be done, something to be given, or something to be refrained from doing, while in actions for a declaration, the court is asked to change, remove, or create a new legal situation. The adoption of an action for a declaration (innovative) creates a new legal situation, and the legal consequence usually arises from the court decision.
In a declaratory action, only a declaratory judgment can be issued.
The existence or non-existence of a legal relationship is definitively determined by the decision rendered in a declaratory action, i.e., the existence or non-existence of a legal relationship that the defendant denies is concluded.
For a declaratory action to be admissible, the plaintiff must have an interest (legal interest) in having the court immediately determine whether the legal relationship that is the subject of the action exists.
In a declaratory judgment action, unlike in an action for performance and an action at law, it is not presumed that the plaintiff has such an interest.
In a declaratory judgment action, the plaintiff must prove that the damage caused to him/her by the dangerous or uncertain situation in question can only be remedied by a declaratory judgment action. This is because a declaratory action can be filed without any denial or violation of a legal situation or right, i.e., without causing any damage, thus constituting an exception to the requirement that the interest must have arisen and be current.
Here, for the plaintiff to have an interest (legal interest) in the immediate determination of the legal relationship, there must first be a current and serious threat to the plaintiff’s right or legal situation.
This threat is often manifested by the defendant’s behavior. For this threat to constitute a danger to the plaintiff, the plaintiff’s legal situation must be called into question due to this threat, and this matter must be of a nature that could cause harm to the plaintiff (Hanağası, op. cit., p. 133 et seq.; the same principles were also adopted by the General Assembly of the Court in its decision dated 01.02.2012 and numbered 2011/10-642 E.- 2012/38K.).
In other words, the existence of legal interest in the immediate determination of the legal relationship depends on the simultaneous fulfillment of the following three conditions:
1-) The plaintiff’s right or legal status must be threatened due to an existing danger;
2-) Due to this threat, the plaintiff’s legal status must be in doubt, and this matter must be of a nature that could cause harm to the plaintiff;
3-) Only a declaratory judgment, which is final and does not authorize compulsory enforcement, should be suitable for eliminating this danger.
Indeed, Article 106 of the Code of Civil Procedure No. 6100, which was in force on the date of the lawsuit, states in its text:
“(1) A declaratory judgment is sought from the court to determine the existence or non-existence of a right or legal relationship or whether a document is forged.
(2) The applicant filing a declaratory action must have a current interest worthy of legal protection in filing this action, except in the exceptional cases specified in the law. (
3) Substantive actions cannot constitute the subject matter of a declaratory action on their own.”
According to this provision, lawsuits seeking to determine the existence or non-existence of a right or legal relationship, or whether a document is forged, are called declaratory judgments.
Unlike in enforcement or civil lawsuits, the plaintiff filing a declaratory judgment must clearly demonstrate that they have a current interest worthy of legal protection when filing the lawsuit and must prove their legal interest.
Substantive lawsuits cannot be the subject of a declaratory judgment action on their own; however, they may be the subject of a declaratory judgment action for the purpose of determining the existence or non-existence of a right or legal relationship.
II. Principle of request dependency:
One of the principles prevailing in civil law proceedings is the principle of request dependency. This principle is explicitly stated in Article 26 of the Code of Civil Procedure No. 6100. Accordingly, the judge is bound by the parties’ claims.
The judge cannot decide on more than a claim or on something other than a claim. Depending on the circumstances, the judge may decide on less than the outcome of the case. The provisions of the law stating that the judge is not bound by the parties’ claims are reserved.
In some cases, the judge is not bound by the parties’ claims. These cases are clearly specified in the law. For example, pursuant to Article 170/3 of the Turkish Civil Code, in a case filed for divorce, even if the grounds for divorce are established, the judge may decide on divorce or separation.
According to the principle of “dependence on the request” regulated in Article 26 of the Code of Civil Procedure No. 6100, it is not possible for the judge to decide whether he/she is bound by the parties’ requests. Accordingly, the judge must decide in a manner and scope that meets the parties’ requests. The parties’ petitions and, generally, the statement of claim are examined to determine whether the parties have made a request and what the judge may decide.
The principle of adherence to the request also imposes an obligation on the judge not to decide on anything beyond the request. This obligation imposed on the judge by the principle of adherence to the claim is also related to and consistent with the “principle of discretion” expressed in Article 24 of the Code of Civil Procedure No. 6100 and the “principle of enforcement by the parties” in Article 25.
On the other hand, the principle of “adherence to the claim” means that the judge cannot decide on anything other than what is claimed. The fact that a matter other than what is claimed cannot be decided is determined by comparing the result of the claim with the result of the ruling.
III. The employer’s obligation to enter into an employment contract:
Contractual freedom applies in our legal system, and accordingly, individuals have the right to enter into contracts and choose the person with whom they will contract. However, in labor law, for social reasons, employers are obliged to enter into employment contracts in certain situations, and therefore, certain restrictions have been placed on the employer’s freedom to contract.
In this context, Articles 30 and 31 of Labor Law No. 4857 apply. The articles of the law also regulate the conditions that impose an obligation on the employer to enter into an employment contract.
Article 30 of the Law. According to the first paragraph of the article, employers with fifty or more employees are required to employ three percent disabled persons in private sector workplaces, four percent in public sector workplaces, and former convicts and persons performing military service under Law No. 1111 dated 16/6/1927 and 21/6/1927 and 12/ Employers are also required to employ former Kalkan workers who were injured in a manner that does not render them disabled as defined in Article 21 of the Anti-Terrorism Law, due to the cause and result of terrorist incidents listed in that article, in jobs suitable for their professional, physical, and mental condition. Article
30 of the Law.
According to the fifth paragraph of the article, if employers wish to rehire former Kalkan workers who left their jobs due to disability, they must immediately hire them for vacant or similar positions at their former workplace, or if there are no vacant or other willing positions, they must prioritize hiring the unemployed worker to take a job with the same conditions. Employers who fail to comply with this obligation shall pay the former employee who requested employment compensation equal to six months’ salary.
In addition to this regulation, employers who violate the obligation to employ disabled and former convict workers in violation of the aforementioned article may be subject to Article 101 of the Law. According to the article, they shall be punished with an administrative fine
Indeed, Article 31 of the Labor Law No. 4857 imposes an obligation on the employer to re-enter into an employment contract. According to Article 31:
“The employment contract of an employee who leaves their job due to military maneuvers or armed service, other than actual military service, or due to a job assignment arising from any law, shall be deemed terminated by the employer two months after the date of leaving the job.
To be eligible for this right, the employee must have worked for at least one year in that job. For each year worked beyond one year, two days are added. However, this period cannot exceed ninety days in total.
For the employment contract to be deemed terminated, the employee’s wages must not have been paid within the expected period. However, the provisions of special laws on this matter remain reserved. Even if the termination of the employment contract by the employer or employee for another reason arising from the Law is notified to the other party within this period, the period specified in the Law for termination shall commence after the expiry of this period. However, if the employment contract is for a fixed term and the contract expires automatically within the period specified above, the provisions of this article shall not apply.
If employees leave their jobs within two months after the end of their term of military or legal service, they must be hired immediately if there are vacant positions for similar work at the workplace or with their former employer, or if there are vacant positions, they must be hired by selecting a job that meets the existing conditions from among other applicants. If the employer fails to fulfill the obligation to enter into an employment contract even if the necessary conditions are met, the employer shall pay the former employee requesting employment compensation equivalent to three months’ salary.
The provision in the law regarding “any military assignment” applies not only to employees performing active military service but also to those who are forced to leave their jobs due to any military assignment, as they are also covered by the legal assignment provision. In addition to these, those who leave their jobs due to the legal assignment provision are also covered.
In order for the employee to benefit from the opportunity provided for in the last paragraph of Article 31 of the Law, they must apply to the employer within two months of the end of the military or legal assignment in question. The employer is obliged to immediately hire the employee whose assignment has ended for the first job that becomes vacant, regardless of whether there are vacancies in similar jobs or not, according to the current conditions.
Unemployed workers returning from military service cannot file a reinstatement lawsuit under the provisions of Article 18, paragraph 1 of the Labor Law. They cannot benefit from job security. Since the employment contract is terminated due to military service, the employment contract does not remain suspended during the period of active military service, and in this case, it cannot be said that the employer terminated the employment contract because the employee was not reinstated to military service (Sürek, S.: İş Hukuku Yenilendi [Labor Law Renewed], 11th Edition, Istanbul 2015, p. 335).
An employer who fails to fulfill the obligation to enter into an employment contract with former employees who have completed their military or legal duties and does not hire them even if the conditions are met is subject to compensation sanctions rather than administrative fines. Indeed, according to the fourth paragraph of Article 31 of the Law, if the employer fails to fulfill the obligation to conclude an employment contract despite the conditions being met, the employer shall pay compensation in the amount of three months’ salary to the former employee who requested to be hired.
IV. Assessment of the specific case:
The plaintiff claimed that he was drafted into military service while working at the defendant’s workplace and that no case was filed for his return from military service, requesting that the defendant be ordered to reinstate him to his job at the workplace.
The court ruled that the plaintiff’s return to military service was unlawful because the defendant was not hired by the employer.
However, the plaintiff’s employment at the defendant company, which began on March 9, 2010, ended at the end of the working day on July 31, 2012, based on the referral letter he submitted to the union.
Furthermore, the defendant employer paid the plaintiff severance pay by accruing it to the July 2012 payroll.
Thus, after the termination of the employment contract between the parties, the plaintiff employee, who completed his active military service, was discharged on February 1, 2013; Between January 21, 2013, and January 23, 2013, the employer entered the records on January 31, 2013, to complete his military service, and the defendant was not hired by the employer, who wrote the note “inappropriate” on the defendant’s petition regarding the need to return to military service.
Indeed, although Article 31/4 of Labor Law No. 4857 imposes an obligation on the employer to rehire an employee who leaves work for military or legal service within the period specified in the Law, if the employee reapplies, if this obligation is not fulfilled, the plaintiff cannot file a lawsuit against the employee, and since the penalty for the employer’s failure to comply with the obligation imposed by law is determined as compensation, the plaintiff cannot file a lawsuit for reinstatement.
Furthermore, it is not possible for the court to rule that the defendant employer’s failure to initiate the plaintiff’s employee into military service is unlawful by accepting the lawsuit filed for reinstatement as a declaratory action, contrary to the principle of “compliance with the request” stipulated in Article 26 of the Code of Civil Procedure (HMK) in its decision numbered 6100.
However, since the plaintiff’s request to be rehired by the defendant employer was not accepted, the plaintiff employee was required to comply with the provision of Article 31/4 of Labor Law No. 4857. Since, according to the article, he was required to file a claim for “compensation in the amount of three months’ salary,” there can be no question of legal benefit in issuing a declaratory judgment.
Consequently, while compliance with the decision of the Special Chamber to terminate the case, as adopted by the General Assembly of the Court, was required, the resistance to the previous decision was incorrect.
Therefore, the decision to resist must be overturned.
CONCLUSION: The defendant’s counsel’s decision to resist the acceptance of the appeal must be REVERSED for the reasons stated in the Special Chamber’s reversal decision, the appeal fee must be refunded to the depositor upon request, and the decision must be closed by way of rectification. It was unanimously decided on 07.03.2018.
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