Workers Cannot File A Reinstatement Lawsuit When Not Reinstated After Military Service
Republic of Turkey
Supreme Court of Appeals
General Assembly of Civil Law
Case No.: 2015/22-1608
Decision No.: 2018/448
Decision Date: March 7, 2018
>AN EMPLOYEE NOT REHIRED AFTER MILITARY SERVICE CANNOT BRING A REINSTATEMENT ACTION BASED ON THE PROVISIONS OF ARTICLE 18 ET SEQUENS OF THE LABOR LAW.
SUMMARY: 1.) An employee who is not rehired after military service cannot file a reinstatement lawsuit based on the provisions of Article 18 et seq. of the Labor Law.
2.) If the employer does not rehire the employee, the employer shall pay the former employee who requested reemployment compensation equal to three months’ salary. (Labor Law 31/4)
“An employee who is not rehired after completing military service cannot file a reinstatement lawsuit based on the provisions of Article 18 et seq. of the Labor Code. They cannot benefit from job security. This is because the employment contract was terminated due to military service, the employment contract was not suspended during the period of active military service, and in this case, it cannot be said that the employer terminated the employment contract that did not exist upon the employee’s return from military service.”
“If an employer fails to fulfill their obligation to enter into an employment contract with former employees who have completed their military or legal duties, or fails to hire them despite meeting the conditions, they are subject to compensation sanctions rather than administrative fines. Indeed, according to the fourth paragraph of Article 31 of the Law, if the employer does not fulfill the obligation to conclude an employment contract when the conditions are met, the employer shall pay compensation in the amount of three months’ salary to the former employee who requested to be hired.”
Following the trial of the “wage claim” case between the parties, the Ankara 10th Labor Court issued a decision on March 7, 2014, with the case number 2013/1747 E.-2014/242 K., accepting the case. Upon the defendant’s attorney’s request for an appeal review, the 22nd The 5th Civil Chamber’s decision dated 05.05.2014 and numbered 2014/11565 E.-2014/11387 K. states that:
“…The plaintiff stated that he had actually worked for the employer … Inc. from March 2010 until July 2012, that he had left his job in August 2012 to perform his military service, that he had completed his six-month military service in February 2013, that he had requested reinstatement by the employer …, that they verbally stated they could not hire him due to no vacancy, that he had worked at the defendant’s workplace for two years and five months, and that he worked as a permanent employee, i.e., for an indefinite period, within the defendant’s organization, and that he was placed in a disadvantaged position because … did not accept his request for reinstatement after completing his military service, and requested a decision on his reinstatement.
The defendant’s representative stated that an indefinite employment contract was signed between the plaintiff and … on November 1, 2011, that the plaintiff resigned from the defendant company on July 31, 2012, to perform his compulsory military service, that the plaintiff completed his compulsory military service in February 2013 and requested to be reinstated, but that the plaintiff did not have the right to file a reinstatement lawsuit and therefore requested that this lawsuit be dismissed.
The court ruled that the plaintiff’s failure to be reinstated after completing his military service 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 any military or legal duty must be hired by the employer immediately if they wish to return to work within two months after the end of this duty, in their old jobs or similar jobs if there are vacancies, or in the first job that becomes vacant, with preference over other applicants, under the conditions prevailing at that time. If the employer fails to fulfill their obligation to enter into an employment contract despite the conditions being met, they shall pay the former employee who requested to be hired compensation equivalent to three months’ salary.”
According to the file contents, it is understood that the plaintiff worked as a technician at the defendant’s workplace between March 9, 2010, and July 31, 2012, and that the plaintiff employee terminated the employment contract with severance pay due to military service. Whether or not the plaintiff is rehired by the employer upon returning from military service is related to the establishment of a new employment contract. 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 the employee after military service and provides for the payment of compensation as a penalty if this is not done.
The court ruled that the plaintiff’s claim was evaluated as failure to rehire after military service under Article 31/4 of the Labor Law No. 4857, and therefore, the case should have been dismissed. However, the written decision was erroneous and required reversal…”
The case was reversed on these grounds and returned to the court for retrial, after which the court upheld its previous decision.
After the General Assembly of the Court of Appeals reviewed the case, determined that the appeal against the decision to uphold the previous ruling was filed within the time limit, and read the documents in the file, it deliberated as follows:
DECISION
The case concerns the request for reinstatement of an employee who was not reinstated to work upon application after completing his military service, pursuant to Article 31/4 of Labor Law No. 4857.
The plaintiff claims that while working at the defendant’s workplace, he resigned to perform his military service, and that his request to return to work at the defendant’s workplace after completing his military service was rejected by the defendant employer on the grounds that there was no vacancy. He therefore requests and sues for a decision ordering his reinstatement to his job at the defendant’s workplace.
The defendant’s representative stated that the plaintiff resigned from his job on July 31, 2012, to perform his compulsory military service, that he was paid severance pay, that the situation of leaving work due to compulsory military service does not fall under Article 31 of Labor Law No. 4857, that the plaintiff’s employment was less than one year and that it is not possible to accept his application made before completing his military service as a valid application, and that there is no vacancy for the plaintiff’s former job or a similar position, arguing that the case should be dismissed.
The court stated that although the case was filed as a reinstatement claim, it was a declaratory action arising from the failure to hire the plaintiff upon his return from military service. It noted that, as in reinstatement cases, the task at hand was to determine the illegality of not hiring the plaintiff upon his return from military service. After conducting an investigation under Article 31/4 of Labor Law No. 4857, Accordingly, it was determined that the plaintiff’s application made during his leave of absence was valid, and the case was accepted on the grounds that the defendant employer did not hire the plaintiff despite having a suitable position available. It was ruled that the defendant’s failure to hire the plaintiff upon his return from military service was unlawful.
Upon appeal by the defendant’s representative, the decision was overturned by the Special Chamber for the reason stated in the heading section above.
The court stated that the plaintiff requested reinstatement, stating that he was not hired after returning from military service, and that the reinstatement case was a declaratory action to determine that the termination was invalid, i.e., that the employer’s action was unlawful, and that the penalty to be applied if this violation was not remedied. The court’s decision on this matter contained a declaratory judgment. The plaintiff’s claim concerns the determination of the unlawfulness of not being reinstated to work after returning from military service. The plaintiff’s designation of this as reinstatement to work does not bind the judge. The cause of action is based on Article 31/4 of the Labor Law No. 4857. It is the judge’s duty to determine that the defendant employer acted contrary to this article of the law. even if it is accepted for a moment that the claim has been exceeded, the judge may decide on less than the claim result in accordance with Article 26 of the Code of Civil Procedure No. 6100 (HMK), within this scope, the case was evaluated and concluded as a request for the determination of illegality, and the previous decision was upheld on the grounds that the claim was not exceeded.
The decision to uphold the previous ruling was appealed by the defendant’s attorney.
The dispute brought before the General Assembly of the Court of Appeals through the appeal process concerns the claim in the present case, filed by the plaintiff employee who left his job to perform compulsory military service and was paid severance pay, seeking reinstatement to his job due to not being rehired after completing his military service. whether the defendant employer’s failure to hire the plaintiff can be considered unlawful, and whether, based on the conclusion reached here, the case should be dismissed under Article 31/4 of Labor Law No. 4857.
During the deliberations of the General Assembly of the Court of Appeals, before proceeding to examine the merits of the case, it was discussed and evaluated as a preliminary issue whether the court could issue a decision to uphold its ruling, considering that the decision issued by the court had been overturned by the Special Chamber as final, and whether the General Assembly of the Court of Appeals could conduct an appeal review on the merits based on the outcome reached here.
Although the case was filed with a request for reinstatement, the General Assembly of the Court of Appeals determined that the request was essentially based on Article 31 of Labor Law No. 4857, and that it was not possible to accept the case and the request as invalid termination and reinstatement as stipulated in Articles 18 et seq. of the same Law. and therefore the decision was not final and there was no preliminary issue, was unanimously accepted.
First, it is necessary to briefly discuss legal interest, declaratory action, the principle of claim dependency, and the employer’s obligation to enter into 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 seeking legal protection from the court) in order to obtain legal protection from the court.
The plaintiff must have an interest that is justified (protected) by legal rules in filing the lawsuit, must need a court decision to obtain their right, and must not unnecessarily burden the court (Arslan, R.; Translated by: Hanağası, E., Interest in the Case, Ankara 2009, preface VII).
The Supreme Court of Appeals’ decisions dated June 24, 1992, No. 1992/1-347 E.- 1992/396 K., and May 30, 2001, No. 2001/14-443 E.- 2001/458 K., also refer to this as the need for legal protection (Rechts-schutzbedürfnis). When seeking legal protection from the courts, there must be a benefit worthy of protection.
On the other hand, this legal benefit must be “legal and legitimate,” “direct and personal,” and “arisen and current” (Hanağası, E., op. cit….135).
During the period when the repealed Code of Civil Procedure No. 1086 was in force, doctrine and judicial decisions accepted the requirement of a legal interest when filing a lawsuit as a “condition for filing a lawsuit.” This condition is one of the “general conditions for a lawsuit” and is considered among the “positive conditions for a lawsuit” because its existence is necessary for the examination of the merits of the case and for a ruling on the merits to be made.
Indeed, the same view is expressed in the decisions of the General Assembly of the Supreme Court dated November 24, 1982, No. 1982/7-1874 E.-914 K.; June 5, 1996, No. 1996/18-337 E.-542 K.; November 10, 1999, No. 1999/1 -937 E.-946 K. dated May 25, 2011, 2011/11-186 E. 2011/352 K., and February 1, 2012, 2011/10-642 E.-38 K.
The application of doctrine and judicial decisions was adopted as is in the Civil Procedure Law No. 6100, which entered into force on October 1, 2011, and the plaintiff’s legal interest in filing a lawsuit is explicitly listed among the conditions for filing a lawsuit in the first paragraph of Article 114, titled “Conditions for Filing a Lawsuit.”
There is no doubt that considering the principle of legal interest as a condition for filing a lawsuit in a case contributes to conducting the trial in accordance with the purpose of the trial and the principle of procedural economy.
Based on this principle, the court must, as a rule, consider the existence of legal interest as a condition for bringing a lawsuit, based on the evidence, events, or facts submitted by the parties to the case file, automatically and at every stage of the proceedings, as of the date the lawsuit was filed. 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 part of our domestic law, and Article 36 of the 1982 Constitution is exercised in accordance with the principle of good faith. This will serve as a safeguard against the abuse of the right to sue by filing unjustified lawsuits.
The legal benefit of filing a lawsuit must be a legitimate benefit accepted by the legal system, it must be related to the rights holder filing the lawsuit, and it must still exist at the time the lawsuit is filed. Furthermore, the lawsuit to be filed must be of a nature that will eliminate the danger that has arisen. Legal benefit can be said to exist when a court decision is necessary at that moment in order for a person to obtain their right. If a court decision is not necessary, there can be no legal benefit (Pekcanıtez, H., Atalay, O., Özekes, M.; Medeni Usul Hukuku [Civil Procedure Law], Ankara 2011, p. 297).
In resolving the dispute, it is necessary to examine what the concept of legal benefit will be in the declaratory action.
Depending on the legal protection sought from the court, lawsuits are divided into performance actions, declaratory actions, and constitutive actions.
In performance actions, the court is asked to order the performance of an act, the delivery of something, or the cessation of an act; whereas in declaratory (creative) actions, the court is asked to change or remove an existing legal situation or to create a new legal situation. The acceptance of a declaratory (creative) action creates a new legal situation, and the legal consequence generally arises from a court decision.
In a declaratory action, only a declaratory judgment can be rendered. The decision rendered in a declaratory action definitively determines the existence or non-existence of the legal relationship. In other words, it is ruled that the relationship whose existence the defendant denies exists, or that the legal relationship whose non-existence the defendant denies does not exist.
For a declaratory action to be admissible, the plaintiff must have an interest (legal benefit) in the court immediately determining whether the legal relationship that is the subject of the action exists or not.
In a declaratory action, unlike in an action for performance or a constructive action, it is not assumed that the plaintiff has such an interest. In a declaratory action, the plaintiff must prove that the damage that would arise from the dangerous or uncertain situation in question can only be remedied by a declaratory action. This is because a declaratory action can be filed before a legal situation or right has been denied or violated, i.e., before any damage has occurred, thus constituting an exception to the requirement that the interest must have arisen and be current.
Thus, for the plaintiff to have an interest (legal benefit) in the immediate determination of the legal relationship, the plaintiff must first have a right or legal situation that is current (present) and facing a serious threat. This threat usually arises from the defendant’s actions.
Whether this threat could pose a danger to the plaintiff depends on whether, due to this threat, the plaintiff’s legal situation is uncertain and whether this uncertainty is of a nature that could cause harm to the plaintiff (Hanağası, op. cit., p. 133 ff.; the same principles have been adopted in the decisions of the General Assembly of the Supreme Court dated 01.02.2012 and numbered 2011/10-642 E.- 2012/38K.).
In other words, the existence of a legal interest in the immediate determination of a legal relationship depends on the simultaneous fulfillment of the following three conditions:
1-) The plaintiff’s right or legal situation must be threatened by a current danger;
2-) Due to this threat, the plaintiff’s legal situation must be uncertain, and this uncertainty must be of a nature that could cause harm to the plaintiff;
3-) Only a declaratory judgment with the effect of a final judgment but without the authority to enforce compulsory execution should be capable of 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:
“(1) Through a declaratory action, a request is made to the court to determine the existence or non-existence of a right or legal relationship or whether a document is forged.
(2) Except in exceptional circumstances specified by law, the plaintiff in a declaratory judgment action must have a current interest worthy of legal protection in bringing this action.
(3) Material facts alone cannot constitute the subject matter of a declaratory judgment action.”
According to this provision, a declaratory action is an action aimed at determining the existence or non-existence of a right or legal relationship, or whether a document is genuine or not.
Unlike in actions for performance or declaratory judgments, the plaintiff filing a declaratory judgment action must clearly demonstrate that they have a current interest worthy of legal protection in filing the action and must prove their legal interest.
Mere facts cannot be the subject matter of a declaratory judgment action; however, they may be the subject matter of a determination for the purpose of establishing the existence or non-existence of a right or a legal relationship.
II. Principle of adherence to the claim:
One of the principles governing civil proceedings is the principle of adherence to the claim. This principle is clearly 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 anything beyond the claim or on anything other than the claim. Depending on the circumstances, the judge may decide on less than the claim. The provisions of the law stating that the judge is not bound by the parties’ claim 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 have been proven, the judge may decide on divorce or separation.
Pursuant to the principle of “binding to the claim” stipulated in Article 26 of the Code of Civil Procedure No. 6100, the judge is bound by the parties’ claims and cannot rule on matters not requested by the parties. Accordingly, the judge must rule in a manner and scope that meets the parties’ claims. What the parties request or do not request and what the judge can or cannot decide on is determined by looking at the parties’ petitions and, in general, the complaint.
The principle of request-based jurisdiction also imposes an obligation on the judge not to decide on more than what is requested. 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 presentation by the parties” in Article 25.
On the other hand, the principle of “adherence to the claim” requires that the judge cannot decide on anything other than what is claimed. The inability to decide on something other than what is claimed is determined by comparing the claim with the outcome of the ruling.
III. The employer’s obligation to enter into an employment contract:
Contractual freedom is valid in our legal system, and accordingly, individuals have the freedom to enter into or not enter into a contract and to choose the person with whom they will enter into a contract. However, in labor law, for social reasons, in some cases, the employer is obliged to enter into an employment contract, and thus, some restrictions have been placed on the employer’s freedom to enter into a contract.
In this context, Articles 30 and 31 of Labor Law No. 4857 specifically regulate the circumstances under which employers are obligated to enter into employment contracts.
Pursuant to the first paragraph of Article 30 of the Law, employers must employ three percent disabled persons in private sector workplaces with fifty or more employees, and in public workplaces, four percent disabled and two percent ex-convicts or persons covered by the Military Service Law No. 1111 dated 21/6/1927 or the Reserve Officers and Reserve Military Officials Law No. 1076 dated 16/6/1927 who were injured while performing military service on 12/4/ 1991 and Article 21 of the Anti-Terrorism Law No. 3713 dated 12/4/1991, are required to employ them in jobs suitable for their profession, physical, and mental condition.
According to the fifth paragraph of Article 30 of the Law, if workers who were forced to leave their workplace due to disability and whose disability was subsequently removed request to be rehired at their former workplace, the employer must immediately hire them for their former job or a similar job if there is a vacancy, or, if there is no vacancy, hire them for the first vacancy that arises, giving them preference over other applicants, under the conditions prevailing at that time. Employers who fail to comply with this obligation shall pay the former employee who requested re-employment compensation equal to six months’ salary.
If employers violate this provision by failing to fulfill their obligation to employ disabled and formerly convicted workers, they shall be subject to administrative fines in accordance with Article 101 of the Law.
Similarly, Article 31 of the Labor Law No. 4857 imposes an obligation on employers to enter into employment contracts. According to Article 31:
“The employment contract of a worker who is called up for military service, maneuvers, or any other reason, or who leaves their job due to a work obligation arising from any law, shall be deemed terminated by the employer two months after the date of leaving the job.
In order for the employee to benefit from this right, they must have worked for at least one year in that job. For each additional year worked beyond one year, two days shall be added. However, this period cannot exceed ninety days in total.
The employee’s wages shall not be paid during the period that must be waited for the employment contract to be deemed terminated. However, the provisions of special laws on this matter are reserved. Even if the termination of the employment contract during this period based on another reason arising from the Law has been notified to the other party by the employer or the employee, the period specified in the Law for termination shall commence after the end 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 due to any military or legal duty, and wish to return to work within two months after the end of that duty, the employer must immediately hire them at their former workplace or in similar jobs if there are vacancies, or, if there are no vacancies, hire them for the first job that becomes available, giving them preference over other applicants, under the conditions prevailing at that time. If the employer fails to fulfill their obligation to enter into an employment contract despite the conditions being met, they shall pay the former employee who requested to be hired compensation equal to three months’ salary.
Since the law refers to “any military duty,” not only employees who are forced to leave their jobs due to active military service but also those who leave their jobs for any other type of military duty can benefit from the provisions of this article. In addition, those who leave their jobs for other legal duties are also covered by this provision.
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 aforementioned military or legal duty. The employer must immediately hire the employee whose duty has ended for similar work if there is a vacancy, or for the first vacancy that becomes available under the current conditions.
An employee who is not hired upon returning from military service cannot file a reinstatement lawsuit based on the provisions of Article 18 et seq. of the Labor Law. They cannot benefit from job security. This is because the employment contract was terminated due to military service, the employment contract was not suspended during the period of active military service, and in this case, it cannot be said that the employer terminated the employment contract that did not exist upon return from military service (Süzek, S.: İş Hukuku Yenilenmiş [Labor Law Revised], 11th Edition, Istanbul 2015, p. 335).
If an employer fails to fulfill their obligation to enter into an employment contract with former employees who have completed their military or legal duties, or fails to hire them despite meeting the conditions, they are 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 when the conditions are met, the employer shall pay compensation equal to three months’ salary to the former employee who requested to be hired.
IV. Assessment of the specific case:
The plaintiff claimed that he was working at the defendant’s workplace when he was called up for military service and that he was not reinstated to his job at the defendant’s workplace upon his return from military service, requesting a decision for his reinstatement to his job at the defendant’s workplace.
The court ruled that the defendant employer’s failure to reinstate the plaintiff to his job upon his return from military service was unlawful.
However, the plaintiff’s employment at the defendant’s workplace, which began on March 9, 2010, ended on July 31, 2012, at the end of the working day, upon his letter of resignation stating that he wished to leave the company due to a letter dated July 31, 2012, regarding his transfer to his unit.
Upon this, the defendant employer paid the plaintiff severance pay by accruing it in the July 2012 payroll.
After the termination of the employment contract between the parties, the plaintiff employee, who completed his compulsory military service, was discharged on February 1, 2013. In a petition dated January 21, 2013, which was entered into the employer’s records on January 23, 2013, the plaintiff requested that the necessary steps be taken for him to return to work, as he would complete his military service on January 31, 2013. Based on the plaintiff’s aforementioned petition, the defendant employer did not hire him, writing the comment “not suitable.”
Therefore, 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 reasons if they apply within the period specified in the Law, since the failure to fulfill this obligation does not grant the employee the right to file a lawsuit for re-employment and the penalty for the employer’s failure to comply with the obligation imposed by the Law is determined as compensation, the plaintiff cannot file a lawsuit for reinstatement.
Moreover, it is not possible for the court to accept the lawsuit filed for reinstatement as a declaratory action, contrary to the principle of “adherence to the claim” stipulated in Article 26 of the Code of Civil Procedure No. 6100, and to rule that the defendant employer’s failure to rehire the plaintiff employee upon his return from military service is unlawful.
However, since the defendant employer did not accept the plaintiff’s request to be reinstated, the plaintiff employee must file a claim for payment of “three months’ salary as compensation” in accordance with Article 31/4 of the Labor Law No. 4857, and therefore, there is no legal benefit in issuing a declaratory judgment.
In this case, it is necessary to comply with the Special Chamber’s reversal decision, which was also adopted by the General Assembly of the Court of Appeals, and it was not correct to insist on the previous decision.
For this reason, the decision to insist must be reversed.
CONCLUSION: With the acceptance of the defendant’s counsel’s appeal, the decision to uphold the ruling should be REVERSED for the reasons stated in the Special Chamber’s reversal decision. If requested, the appeal fee should be refunded to the payer. The decision was made unanimously on March 7, 2018, with no avenue for appeal.