An employee whose employment contract is terminated by the employer may, if certain conditions are met, ask the court to declare the termination invalid and order their reinstatement. A reinstatement lawsuit is subject to short, strict deadlines, and the first step is not a lawsuit but mandatory mediation.
In this article, we cover the conditions for a reinstatement lawsuit, the deadlines that apply and the consequences of the court’s judgment. For other employee claims and compensation under employment law, see our employment law page.
Who can file a reinstatement lawsuit?
To benefit from job security, the following conditions under Article 18 of the Labour Act No. 4857 must all be met:
- The workplace employs thirty or more employees
- The employee has at least six months of seniority
- The employment contract is for an indefinite term
- The employee is not an employer’s representative managing the entire business, or a manager authorised to hire and dismiss employees
The contract of an employee who meets these conditions may only be terminated for a valid reason.
What is a valid reason, and which reasons are not considered valid?
Valid reasons are those arising from the employee’s competence or conduct, or from the requirements of the business, the workplace or the work. The law expressly states that certain reasons can never constitute valid grounds for termination:
- Union membership or participation in union activities
- Filing a complaint against the employer with administrative or judicial authorities
- Race, colour, sex, marital status, family responsibilities, pregnancy, childbirth, religion or political opinion
- Absence from work during statutory maternity leave
- Absence from work due to illness or accident within the statutory waiting period
The notice of termination must be given in writing, and the reason for termination must be stated clearly and precisely. In terminations based on the employee’s conduct or performance, the employee’s defence must, as a rule, be obtained (Labour Act Art. 19). The burden of proving that the termination was based on a valid reason lies with the employer.
How do the reinstatement deadlines work?
There are two critical deadlines in the reinstatement process:
- Mediation: You must apply to a mediator within one month of the notice of termination being served. If a lawsuit is filed directly without first applying to a mediator, it is dismissed on procedural grounds.
- Lawsuit: If no agreement is reached in mediation, the lawsuit must be filed at the labour court within two weeks of the date on which the final mediation report is drawn up.
These deadlines are peremptory; if they are missed, the reinstatement claim is dismissed without examination of the merits. The law requires reinstatement cases to be concluded quickly.
The deadlines throughout the process are summarised in the table below:
| Step | Deadline | Starts from | Legal basis |
|---|---|---|---|
| Application to a mediator | 1 month | Service of the notice of termination | Labour Act Art. 20 |
| Filing the lawsuit | 2 weeks | Final mediation report | Labour Act No. 4857, Art. 20(1) |
| Application to the employer to return to work | 10 working days | Service of the final judgment | Labour Act Art. 21 |
| Employer reinstating the employee | 1 month | The employee’s application | Labour Act Art. 21 |
What is the difference between a valid reason and just cause?
The Labour Act regulates two different types of termination. Termination for a valid reason is termination with notice, which is reviewed in a reinstatement lawsuit for employees covered by job security. Termination for just cause, on the other hand, is the immediate termination of the contract without waiting for the notice period, in situations such as health reasons, conduct contrary to morality and good faith, or force majeure (Labour Act Art. 25).
In a just-cause termination based on conduct contrary to morality and good faith, the employee is not paid severance pay. For this reason, which provision the employer relied on in the notice of termination, and whether it can prove it, is decisive for both reinstatement and compensation claims.
What should you pay attention to in mediation?
In mediation, the parties often agree on a compensation payment instead of reinstatement. If an agreement is reached, no lawsuit can be filed later on the matters covered in the agreement report.
For this reason, when evaluating an offer, all the entitlements that would arise if the case were won should be calculated together: compensation for non-reinstatement, wages for the idle period, severance pay and notice pay, and any unpaid wages, overtime and annual leave entitlements.
Who bears the burden of proof in a reinstatement lawsuit?
The burden of proving that the termination was based on a valid reason lies with the employer. The employer must establish the reason for termination with documents such as performance evaluations, written warnings, defence records or business decisions. If the employee claims that the termination was actually based on another reason, such as union activity, the employee must prove that claim (Labour Act Art. 20).
In the case law of the Court of Cassation, termination is seen as a “last resort”: the court also examines whether the employer considered less severe measures, such as assigning the employee to another position or improving their performance through training.
What happens if the court orders reinstatement?
If the court rules that the termination is invalid and orders the employee’s reinstatement, the process continues as follows:
- The employee must apply to the employer to return to work within ten working days of the final judgment being served. If the employee does not apply, the termination is deemed valid.
- If the employer does not reinstate the employee within one month of the application, it pays compensation for non-reinstatement of at least four and at most eight months’ wages.
- For the period during which the employee was not employed until the judgment became final, the employee is paid up to four months’ wages and other entitlements.
If notice pay or severance pay was paid at the time of termination, these payments are set off against the amounts payable under the law.
Why must the application to return to work be genuine?
The application made to the employer after the reinstatement judgment must reflect a genuine intention to return to work. In the case law of the Court of Cassation, it is accepted that compensation for non-reinstatement may not be awarded where the application is made solely to obtain compensation and does not reflect an intention to return to work.
When the employer invites the employee back, the employee is expected to start work within a reasonable time. An employee who does not return despite the invitation may lose the claim for compensation for non-reinstatement. For this reason, it is important to make the application in writing and to keep the employer’s response.
Reinstatement or settlement?
Every employee who files a reinstatement lawsuit is in fact weighing two possibilities: returning to work, or ending the employment relationship in exchange for reasonable compensation. These two options should be compared at every stage of mediation and litigation.
The comparison takes the following items into account:
- Compensation for non-reinstatement (between 4 and 8 months’ wages)
- Wages for the idle period and other entitlements (up to 4 months)
- Severance pay and notice pay
- Unpaid wages, overtime and annual leave entitlements
- The time and uncertainty that continued litigation means for the employee
Accepting an offer made in mediation without doing this calculation may lead to a loss of rights. For details of employee receivables, see our employment law page.
How can employers reduce reinstatement risk?
A significant proportion of reinstatement cases are decided in the employee’s favour because of procedural shortcomings rather than the reason for termination. For employers, the following steps are decisive:
- Giving the notice of termination in writing and stating the reason for termination clearly and precisely
- In terminations based on conduct or performance, obtaining the employee’s defence before the termination
- Documenting performance issues in advance with written warnings and evaluations
- In terminations based on business requirements, documenting the decision and its implementation consistently
If the employer also calculates the potential compensation for non-reinstatement and idle-period wages before coming to the mediation table, unnecessary litigation can be avoided. For advisory services for employers, see our employment lawyer in Ankara page.
Which documents should you prepare?
The following documents are particularly important in the reinstatement process:
- The notice of termination and, if any, the letter requesting your defence
- The employment contract and any addenda
- Payslips and bank payment records
- Your SGK (Social Security Institution) service record
- Correspondence, emails and messages with the employer
- Details of witnesses who know about the events leading to the termination
The day you receive the notice of termination
The most common mistake in the reinstatement process is missing the one-month mediation deadline. Gathering your documents and working out the date on which the deadline expires on the day you receive the notice of termination helps ensure that all subsequent steps proceed properly. For an assessment, you can contact our office.
