CMNT_TITLE

Termination of Employment Convention, 1982 (No. 158) - Türkiye (RATIFICATION: 1995)

Previous comment

The Committee notes the observations of the Turkish Confederation of Employers’ Associations (TISK), communicated together with the Government’s report. It further notes the observations of the Confederation of Progressive Trade Unions of Turkey (DISK), received on 1 September 2022. The Government is requested to provide its comments in this respect.

Article 2(3) of the Convention. Adequate safeguards against recourse to contracts of employment for a specified period of time. The Committee notes the information provided by the Government with respect to the application of section 11 of Law No. 4857, on “Fixed-term and indefinite employment contracts”, which provides safeguards against abusive recourse to fixed-term employment contracts. The Government indicates that, pursuant to section 11, an employment contract is deemed to have been made for an indefinite period where the employment relationship is not based on a definite period (a fixed term). The Government adds that a fixed-term contract is one concluded in written form which is for a specified duration or is based on objective conditions, such as the completion of a specific task or the occurrence of a certain event. In its observations, the TISK indicates that section 11 of Law No. 4857 establishes extremely difficult conditions for the conclusion of fixed-term employment contracts, to prevent abusive recourse to such contracts. The Government also refers to section 12 of Law No. 4857, which provides that an employee working under an employment contract for a definite period shall not be subjected to differential treatment in relation to a comparable employee working under an employment contract for an indefinite period. In addition, the Committee notes the court decision communicated by the Government, holding that a fixed-term contract cannot be concluded in the absence of an objective reason justifying the fixed-term nature of the employment. The Committee further notes that, pursuant to section 11, fixed-term contracts may be concluded more than once where an “essential reason” exists, in which case successive employment contracts will retain their status as fixed-term contracts. In this context, the Committee notes the Government’s indication that, according to section 11 and the established case law of the Cassation Court, it is not necessary for the “essential reasons” invoked in each of the successive fixed-term contracts to be the same. Lastly, the Committee notes that the Government has not provided information with respect to the application in practice of section 11, including information on the total number of fixed-term contracts and contracts of indefinite duration. Noting that section 11 of Law No. 4857 permits the use of successive fixed-term employment contracts where an objective reason persists or a new reason emerges, the Committee requests the Government to provide detailed updated information on the manner in which section 11 is applied in practice, particularly in relation to preventing abusive recourse to successive fixed-term contracts including copies of decisions of the Cassation Court or other judicial bodies that have interpreted this provision. The Government is further requested to provide detailed information, including statistical data, on the impact of section 11 in preventing abuses in the use of fixed-term contracts of employment. Additionally, the Committee reiterates its request that the Government provide data on the total number of fixed-term employment contracts compared with employment contracts for an indefinite duration concluded during the reporting period.

Article 2(4)–(6). Categories of employees excluded from the scope of the Convention. The Committee once again recalls that section 18 of Law No. 4857 excludes from its employment protection provisions: workers employed in businesses employing less than 30 workers; workers with less than six months’ employment; and workers in managerial positions. The Committee notes the extracts provided by the Government from collective agreements concluded in enterprises employing fewer than 30 workers, which explicitly refer to the Convention and provide for the worker to receive compensation in the event of unfair dismissal or dismissal without valid cause. Lastly, the Committee notes the statistical data provided by the Government on the number of enterprises employing fewer than 30 employees and the number of insured workers employed by these enterprises. According to the data provided, as of the first quarter of 2022, less than half—42.8 per cent—of those working in enterprises with less than 30 workers were insured. The Committee further notes the Government’s reference to the Decision of the Supreme Court of Appeals General Assembly No. 2017/2903E. and 2021/1837K.

The Government also recalls that section 17 of the Labour Law provides that if the contracts of these categories of workers are terminated in bad faith, they are entitled to compensation equal to three times the amount of wages they would have received during the notice period, plus compensation in lieu of notice if the notice period was not respected. In its observations, TİSK refers to the Turkish Code of Obligations, Law No. 6098, which is applicable to jobs and workers outside the scope of the Labour Law. Notably, according to the section 438, if the employer terminates the service contract immediately without lawful reason, the worker may demand compensation at the amount of the termination notice period for indefinite contracts or the amount the worker would have earned if the periods had been complied with for fixed-term contracts. The Government mentions the decision of the Supreme Court of Appeals General Assembly No. 2017/2903E. and 2021/837. The Court ruled that, labour protection provisions, in this case the protection against fixed-term contracts, can only be put forward by the employees and therefore the employer cannot argue that the employment contract is indefinite. The Committee also notes that relatively large number of workers are excluded from the scope of the Turkish Labour Law, according to the data provided by the Government indicating that the number of insured employees in workplaces with fewer than 30 workers is 8,248,571 in 2022 (43 per cent of all insured workers). The Committee requests the Government to provide additional information, including extracts from court decisions relevant to the manner in which it is ensured that workers excluded by section 17 of Law No. 4857 are provided equivalent protections to those afforded by the Convention. In particular, the Committee requests the Government to continue to provide updated information on the application of the Convention in small and medium-sized enterprises that may be excluded from the employment protection provisions of the Labour Law, including statistical data on the number of establishments employing fewer than 30 workers in comparison with other establishments, and examples of court decisions that have examined allegations of bad faith dismissals, including in small and medium-sized enterprises with less than 30 employees.

Article 10. Remedies in case of unjustified termination. The Committee notes the Government’s reference to case law awarding the compensation of payment in the amount of three times the worker’s wages during the notice period as provided for in section 17 of Law No. 4857. Additionally, the Government points to the exceptions set out in section 4 of the Law, which exclude from the application of the Law enterprises in the agriculture, forestry and domestic work sectors that employ less than 50 employees. It nevertheless indicates that employees working in these enterprises are covered under the Code of Obligations. In its observations, the DISK points out that cases brought by workers for reinstatement take some four to five years to complete and even where the court concludes that the dismissal was unjustified, employers are not required to reinstate the worker. The DISK indicates that only one per cent of workers who win their complaints for unfair dismissal are reinstated. Nor can the worker benefit from unemployment insurance until the conclusion of the court procedure, so that they are not able to access the benefit when they most need it, immediately after their dismissal. Moreover, the DISK indicates that the compensation in lieu of reinstatement is only four months’ salary, which is inadequate to deter employers from unjustifiably dismissing workers. The DISK alleges that it is common for employers to dismiss workers to prevent workers from organizing at the workplace. The Committee requests the Government to provide updated detailed information on the manner in which those workers excluded from application of the provisions of the Convention pursuant to section 4 of Law No. 4857 are provided with adequate compensation or such other relief as may be deemed appropriate, in the event of unjustified termination, as required under Article 10 of the Convention.

Seafarers. In response to the Committee’s previous comments, the Government indicates that section 14 of Maritime Labour Law No. 854 on “Annulment and Dissolution without Precedent” includes provisions regarding the termination of the employment contract by the employer or employer’s representative, or the seafarer. In this context, the Government refers to Decision No. 2012/7542E. and 2019/20331K. of the 9th Civil Chamber of the Supreme Court of Appeals. In that case, a seafarer working within the scope of Law No. 854, demanded severance pay and other indemnities, alleging that he had terminated his employment contract in accordance with the law, after his wages were not paid in their entirety. The employer maintained that the worker was not entitled to severance pay because his termination was unfair, alleging that the worker’s overtime and holiday pay were paid by accrual, that he was covered by the provisions of the collective agreement and had received a meal card in accordance with the agreement. The case was dismissed by the lower court on the grounds that the termination of the employment contract by the worker for just cause could not be proven. Following appeal, the Supreme Court ruled in favour of the worker, finding that the working hours were not disputed by the parties, and that the worker had in fact worked overtime. On this basis, the Supreme Court held that the worker had correctly terminated his employment contract due to non-payment of overtime, in accordance with section 24/II-e of Labour Law No. 4857. The Committee requests the Government to provide updated information in relation to protections afforded to seafarers against unjustified dismissal, including copies of relevant court decisions that may have been issued in this respect.

[ The Government is asked to reply in full to the present comments in 2024.]