Violation Of The Prohibition Of Discrimination Due To Non-Payment Of Termination Indemnity To Foreign National Lecturers
Events
The applicants, who are citizens of the Republic of Azerbaijan, started working at the university as foreign contracted lecturers in 1996 and 1992 respectively. The applicants’ contract was renewed every year, including in 2016, but was not renewed at the beginning of 2017 on the grounds that their services were not required.
Applicants applied to the university separately and requested the payment of the end-of-employment compensation, but no payment was made by the university. The first applicant filed a lawsuit at the 1st Administrative Court and the second applicant filed a lawsuit at the 2nd Administrative Court, requesting the cancellation of the rejection of the payment of the end-of-work compensation and the compensation of the end-of-work compensation. The Administrative Courts cancelled the rejections and ordered the payment of end-of-work compensation to the applicants.
Regional Administrative Court, which examined the university’s appeal applications, accepted the appeals and dismissed the cases. In the justification of the decisions, it was emphasised that the Higher Education Personnel Law No. 2914 stipulates that the salary to be paid to foreign lecturers to be employed under contract in accordance with the Higher Education Law No. 2547 shall be determined by the Council of Higher Education within the principles to be determined by the Council of Ministers; it was stated that the Council of Ministers decision No. 83/7148, which determines the salary to be paid to foreign lecturers, does not include a provision stating that severance pay can be paid.
Allegations
The applicants alleged a violation of the prohibition of discrimination in connection with the right to property due to different treatment on the basis of nationality by not paying end-of-employment compensation.
The Court’s Assessment
Applicants were deprived of the end-of-employment compensation, which they would have received if they were Turkish citizens, because they were not Turkish citizens. In this case, it is clear that contract lecturers are treated differently on the basis of whether they are Turkish citizens or not.
It is observed that there is no information about the reason for the different treatment in the concrete case in the administration’s procedure and in the decision of the Regional Administrative Court. In the opinion of the Ministry, it is stated that it is in accordance with equity not to pay end-of-employment compensation to contracted foreign lecturers due to their high contractual salaries. However, the Ministry’s opinion does not explain what kind of advantages foreign lecturers have compared to Turkish citizen lecturers, and it is suggested to ask the Higher Education Institution about this issue.
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While examining whether the rights and freedoms are violated in individual application, as a rule, the justifications of the courts of first instance are examined. In the concrete case, when the decisions of the courts of first instance are examined, it is not mentioned that foreign lecturers have some advantages in terms of wages, nor can it be seen that the different treatment is justified on the specified basis. The Regional Administrative Court only stated that there is no provision in the legislation stipulating the payment of end-of-job compensation to contracted foreign lecturers and did not examine the prohibition of discrimination. In this case, it is considered that it would be speculation to accept that the reason for not paying end-of-employment compensation to contracted foreign public officials is the high salaries paid to them.
Although public authorities have a certain degree of discretion in regulating the conditions of entitlement to end-of-employment compensation and creating differences between individuals in this sense, it is obligatory to show that the different treatment is based on objective and justified reasons. However, in the concrete case, it could not be demonstrated that the different treatment the applicants were subjected to due to their foreign nationality had an objective and justified basis.
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Considering the reasoning of the Regional Administrative Court, it is understood that the finding that the non-payment of end-of-job compensation to the applicants was in accordance with the law was based on the lack of regulation in the secondary legislation, not on an explicit legal provision prohibiting the payment. Therefore, it is understood that the main reason for the different treatment is that the secondary legislation on the remuneration of foreign lecturers is regulated and interpreted without considering the constitutional provisions.
Since there is no explicit legal provision prohibiting the payment of end-of-work compensation to the applicants, it is the constitutional duty of the courts of first instance to interpret the provisions of the secondary legislation in accordance with constitutional principles. In this respect, justifying the non-payment of end-of-work compensation to the applicants on the grounds that there is no explicit provision stipulating the payment of end-of-work compensation is contrary to the obligation of the judicial authorities to interpret the provisions of the legislation in the light of constitutional guarantees.
In this case, it is concluded that there is no objective and justifiable reason for the different treatment of contract lecturers on the basis of being a Turkish citizen or not in terms of entitlement to end-of-employment compensation. Since it has been concluded that there is no justifiable reason for the different treatment, it is not deemed necessary to make a further examination in terms of proportionality.
For the reasons explained above, the Constitutional Court decided that the prohibition of discrimination in connection with the right to property was violated.
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