Job Security and Reinstatement Cases

Entrance

Job security is a normative safety net aimed at protecting workers against unilateral termination. The system, shaped by Articles 18-21 of the Labor Law No. 4857 and the Labor Courts Law No. 7036, limits the freedom to terminate employment based on the principles of proportionality, consistency, and last resort, while centering on the criterion of termination for a valid reason. Within this framework, threshold conditions such as the 30-employee limit , 6 months of seniority , employment under an indefinite-term contract , and the employer's representative exception ; and in the process, outcome institutions such as mediation application , statute of limitations , proof regime , the court's investigative duty , and ultimately, reinstatement decisions – compensation for non-reinstatement – wages for the period of unemployment are decisive. The most debated areas in practice are: The criteria for counting 30 workers include the industry/workplace/enterprise level collection method, subcontracting-collusion-organic ties , the impact of partial/on-call/seasonal contracts on coverage, the standard of evidence in performance and operational terminations , the scope of wages for time spent idle , the inclusion of fringe benefits, the gross/net debate, and the implications of interest and social security contributions. These topics are discussed in depth below, in light of established principles and criteria in court and high court practice.

I. Scope of Job Security and the “30 Workers” Criterion

1. Normative framework

To benefit from job security provisions, the following conditions must be met: (i) the employee must be working under an indefinite-term employment contract, (ii) the employee must have at least six months of seniority , and (iii) the employer must employ at least 30 workers in workplaces operating in the same sector at the time of termination . Additionally, the employee must not be an employer's representative or a senior manager with the capacity to direct and manage the entire business . Job security protection does not arise unless all these thresholds are met.

2. The basis of the "30 workers" count: distinction between industry, workplace, and enterprise

The crucial point in practice is that the total number of employees in all workplaces belonging to the same employer and operating in the same sector is taken into account. This approach is consistent with the structural purpose of job security protection and eliminates restrictive interpretations. For example, if an employer has multiple branches operating in the same sector, whether in the same province or different provinces, all employees whose contractual relationship continues in these branches on the date of termination are included in the count. Separate threshold assessments are made for different sectors.

3. Distinction between “contractual bond” and actual work

the count of actual work , but the existence of an employment contract . Part-time, fixed-term, on-call, remote, or home-based workers; even those on short-term unpaid leave are counted as long as the contractual relationship continues. This approach neutralizes employers' attempts to circumvent the threshold through contract typology or part-time employment.

4. Issues related to subcontractors, collusion, and organic ties

If collusion is detected in subcontracting relationships , the employer status is centralized with the main employer , and the employee count is calculated accordingly. In group/holding structures, if criteria such as organic links , unity in management and personnel policies , and financial/organizational integration exist, a single employer assessment may be considered as an exception to the rule; if this is not the case, each legal entity is evaluated independently. In disputes, witness testimonies alone are not sufficient; organizational charts, human resources procedures, payroll and leave forms, and workplace transfer or assignment records are important.

5. Seasonal and temporary jobs

In seasonal/periodical work, the end of the season may be grounds for termination by the employer; however, this does not negate the analysis of job security . The contractual relationship at the time of termination, the nature of the season, the contractual rules of the parties, and the overall work organization are all evaluated. Attempts by the employer to bypass job security through a series of fixed-term contracts at the end of each season are subject to scrutiny in terms of collusion and essential elements of the work.

6. Exception for employer representative/senior executive

Senior executives who actually exercise hiring and firing authority on behalf of the employer , and who independently manage the entire business or a significant portion of it , are generally not covered by job security regulations. It should be remembered that the title alone is not sufficient; the actual exercise of authority is what is decisive. In mid-level positions, such as human resources managers, specific authorities, approval processes, and the internal instruction chain are meticulously examined.

II. Reinstatement Process: Conditions, Procedure, and Proof

1. The principle of valid cause and types of termination

A valid reason for termination must be substantiated by the employee's inadequacy (performance, job adaptation), behavior (violation of workplace rules, breach of trust), or operational/workplace/job requirements (technological transformation, downsizing, restructuring). proportionality and last resort , particularly in operational terminations, it is questioned whether the employer relocation, training, or transfer to another position . In behavioral terminations, of obtaining a defense, equal treatment , and gradual penalties are examined; using individual and minor violations as grounds for direct termination constitutes disproportionality.

2. Mediation and statutes of limitations

Mandatory mediation must be initiated within one month of receiving the termination notice ; if no agreement is reached, a lawsuit must be filed within two weeks of the date of the final mediation report . These time limits are forfeiture periods and cannot be extended by excuse. The employee's clear assertion of their request for reinstatement during mediation, and the unequivocal recording of the other party's offers of compensation instead of reinstatement, will facilitate proof later on.

3. Filing of the lawsuit, the court's investigation, and the nature of the trial

Reinstatement lawsuits are subject to expedited trial procedures. The court has the obligation to investigate the reality and validity of the termination ex officio . The employer is responsible for proving the reason on which the termination is based ; abstract, formulaic statements (e.g., "the requirements of the job") are not sufficient on their own. In the evidentiary regime:

Personnel files, performance forms, warning letters, target-result tables, PIP plans,
In operational terminations , capacity utilization reports, financial statements, data sets on employment-volume correlation, organizational charts,
Witness testimony (especially regarding the fate of workers in similar positions during the same period),
Expert witness (in performance/operational requirements analyses),
Emails and internal communications (decision to terminate employment and reasons for lack of alternatives) are important.

The court's reasoning the objective criteria, proportionality , and consistency of the ruling ; otherwise, the risk of reversal is high.

4. Calculation of 6 months of seniority

In determining seniority, in addition to the employee's actual working time, factors such as intermittent contracts, transfers, intra-group transitions, suspension periods (e.g., temporary disability), and probationary periods are taken into account. In consecutive fixed-term contracts, if the total duration of the periods exceeds 6 months, based on the principle of continuity of the employment relationship, the right to benefit from job security may arise.

III. Established Principles in Court and Supreme Court Practice

1. “30 workers” and scope

In high court practice, the total number of employees whose contractual relationship continues in all workplaces within the same sector as of the termination date is taken as the basis; no distinction is made between part-time/on-call/seasonal employees. In subcontracting, the detection of collusion necessitates that the count be made through the main employer. In holding companies, if the organic link criteria are not met, each company is evaluated separately.

2. Content of the valid reason check

In performance-based terminations , objective , measurable , and comparable goal-outcome statements are sought; direct termination may be considered disproportionate if individual errors/nonconformities can be remedied with milder measures such as warnings, training, or reassignment. Rationality and consistency are key concepts in operational terminations: Simultaneous hiring of new employees when dismissing them, applying overtime immediately after termination , or re-establishing the same position shortly afterward weakens the justification for termination.

3. 10-day application and onboarding process

A written application from the employee is required within 10 days of the court decision becoming final . The application must be clear and unconditional , and it must be explicitly stated that the employee requests reinstatement under the same conditions. The employer's obligation to reinstate within one month must be substantiated by a formal summons or a notarized notice . The employer may offer an equivalent position after the court decision ; however, if this change is substantial (significant salary reduction, weakening of status, worsening of working conditions), it may be considered a refusal to reinstate.

IV. Consequences of the Reinstatement Decision: Compensation for Failure to Re-employ and Wages for the Period of Unemployment

1. Compensation for failure to start employment (4–8 months)

When the court rules that the termination is invalid, it awards compensation for failure to reinstate, ranging from 4 to 8 months' wages . The main parameters influencing this assessment are the employee's seniority, the severity of the reason for termination, the degree of bad faith on the part of the employer, the size of the workplace, and similar practices. This compensation is generally exempt from income tax , except for stamp duty ; however, this distinction needs to be clarified during the execution phase in payroll and accounting practices.

2. Compensation for time spent idle (maximum 4 months) – nature

Compensation for time spent idle is not wage compensation for the period not worked , but a compensatory right arising from the law . The court may award this compensation and other rights for a maximum of 4 months . The basis for calculation is the gross wage applicable in the period following the termination . Although the scope of the phrase "other rights" is debatable in practice, benefits such as travel, meal, transportation, bonuses, and premiums , which can be quantified in monetary terms, may be included in the calculation depending on the specifics of the case.

3. The gross/net debate, deductions, and social security

In practice, the correct method is to determine the wage for the period of unemployment based on the gross amount; and to consider income tax and social security contribution deductions during enforcement. In cases of compensation for failure to reinstate employment, while the gross amount is generally determined in practice , it is accepted that no deductions should be made except for stamp duty . The social security notification and premium accrual for the period of unemployment are completed by the employer submitting a supplementary declaration later ; this is part of the "fulfillment of the debt" in enforcement files.

4. Interest commencement

Interest on compensation for time spent unemployed is generally calculated not from the date of termination , but from the moment of default after the reinstatement decision becomes final . Similarly, in compensation for failure to reinstate, default is considered to be the date the employer explicitly expresses its intention not to reinstate (often a rejection after a 10-day application or a period of silence lasting one month ). Unless the contract includes a provision for commercial interest or default interest , statutory interest applies.

5. Enforcement, offsetting, and tax details

Although disputes regarding offsetting the periods during which an employee receives unemployment benefits against periods of unemployment are seen in the field, the generally accepted view is that wages for periods of unemployment arise from the law and should be paid directly; unemployment benefits may be subject to the employer-institution relationship. In enforcement proceedings, the decision is suitable for enforcement based on a court judgment ; to reduce netting-deduction disputes due to the "gross judgment," requesting expert assistance through an interim accounting/Social Security Institution decision in the enforcement file provides a practical solution.

V. Current Debates: Problematic Issues in Practice and Proposed Solutions

1. Scope of "Other rights" and method of monetization

The limits of "other benefits" included in idle time are defined by the established and continuous benefits of the workplace. Travel, meal, and transportation allowances should be included as they are easily convertible into monetary value; for in-kind benefits (e.g., transportation), the actual monetary equivalent (market rate, unit cost of service purchased by the employer) should be used. Regarding bonuses/incentives , seasonality and performance conditions are considered: objective ratios such as the average of the last 12 months, the total bonus pool for the period, or the number of employees can be used.

2. Limitations on starting work in an equivalent position and "substantial change"

The employer may reinstate the employee to an equivalent position after the decision ; however, this does not count as a "reinstatement" if there is a significant reduction in wages , benefits , status , and responsibilities . If the employer's offer of a job change worsens geographical or family circumstances (long distance, impossibility of transportation, shift change), it may be subject to scrutiny for abuse of rights in the specific case .

3. PIP and measurability in performance terminations

For a claim of poor performance to be credible, the goals must be clearly stated from the outset , measurable , comparable , and objective . Implementing a Performance Improvement Plan (PIP) process; documenting the feedback-training-reasonable timeframe-interim evaluation steps; and treating other employees in similar situations equally are crucial in a validity audit. General statements such as "sales have dropped" or "there are compatibility issues" are insufficient on their own.

4. Consistency-Rationality Test in Operational Terminations

Justifications such as restructuring, digitalization, and cost reduction must be supported by numerical data . Actions such as advertising the same position immediately before or after termination , outsourcing the same work to a subcontractor , implementing overtime , and quickly reinstating the position undermine the sincerity of the termination justification . The limits of management authority are not scrutinized in terms of the appropriateness of the operational decision , but rather in terms of excluding arbitrariness and ensuring proportionality .

5. The need for uniformity in gross-net and interest accrual

To prevent discrepancies between courts, the judgment should clearly state: "The compensation for the period of unemployment shall be calculated based on the gross amount, taking into account legal deductions during enforcement; legal interest shall accrue from the date of default ." It should also be clarified that no deductions other than stamp duty will be made from the compensation for failure to reinstate employment

VI. Strategy and Implementation Guide (For Lawyers)

1. Regarding the plaintiff's employee representative

Scope analysis: Industry identification, list of all workplaces affiliated with the same employer, payroll-HR data as of the termination date, subcontractor-contractor relationships, organigram.
The evidence package is structured as follows: In the performance case, target-output tables and PIP records; in the operational case, capacity-volume data and recruitment/overtime records.
Mediation report : A record of the unconditional request for reinstatement and clarity of counter-offers
Application-default: Notarized notice within 10 days ; draft responses to employer calls.
Accounting strategy: Gross wages; method of monetizing fringe benefits; interest/social security contributions.

2. Regarding the defendant employer's representative

Substantiation of the valid reason: Documented, objective, and comparative data on performance, discipline, and operational justifications.
Consistency shield: Check pre- and post-termination hiring and overtime data; workforce planning reports.
Preparation for equivalent employment: A proposal file proving the equivalence of the position/salary/benefits after the decision.
Cost forecast : Compensation risk analysis for a period of 4–8 months; gross and fringe benefits components of idle time compensation ; social security and tax projections.
Execution and settlement: Proactive payment plan; early offer to reduce interest/default risk.

Conclusion and Evaluation

The job security regime, while limiting the freedom to terminate employment through the examination of valid reasons , has defined the scope of protection through thresholds such as the 30-employee threshold , 6 months of seniority , and the employer's representative exception . The determining criterion within the scope is the total contractual relationship across all workplaces in the same sector at the time of termination . In reinstatement cases, the court examines whether the performance or operational reasons are documented, objective, and proportionate ; in cases of invalid termination, it activates the institutions of reinstatement , compensation for failure to reinstate , and wages for the period of unemployment . In practice, establishing uniform, clear, and enforceable clauses in the calculation of the period of unemployment is of vital importance, particularly regarding aspects such as gross wages , monetary value of fringe benefits , gross-net distinction , commencement of interest , and social security notification

Labor Law No. 4857, Legal Consultancy, Labor Law, Employment Contract, Reinstatement, Istanbul Lawyer, Supreme Court Decisions

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