Reinstatement Claims in Turkey: Conditions, Deadlines and Compensation

1. INTRODUCTION AND THE LEGAL NATURE OF JOB SECURITY

Job security, a cornerstone of modern labour law, seeks to protect employees’ economic and social well-being and provide legal safeguards against arbitrary dismissal. Under Articles 18 et seq. of Turkey’s Labour Act No. 4857, this framework limits the employer’s freedom to terminate an employment contract by requiring dismissal to be based on legally recognised valid grounds. An action for reinstatement (işe iade davası) is one of the principal remedies available to an employee challenging an arbitrary dismissal under Turkish law.

1.1. The Rationale for Job Security in Labour Law

The development of labour law has been shaped by the principles of protecting employees and supporting the weaker party to the employment relationship. Article 18 of Labour Act No. 4857 protects employees against arbitrary or unjustified termination by their employer. This system serves not only the employee’s individual interests but also labour-market stability and harmonious industrial relations. When terminating the contract of an employee covered by job-security provisions, the employer must rely on a valid reason relating to the employee’s capacity or conduct, or to the operational requirements of the undertaking, establishment or work.

1.2. The Theoretical and Legal Nature of an Action for Reinstatement

The legal nature of reinstatement proceedings has long been debated in academic writing and judicial decisions. Whether such proceedings constitute an action for a declaration or an action seeking an order for performance has significant theoretical implications. The generally accepted view is that a reinstatement claim is not a conventional action for performance: the resulting judgment does not allow the employer to be compelled through enforcement proceedings to put the employee back to work. The position associated with the Turkish Court of Cassation (Yargıtay) and legal scholars, including Professor Muhammet Özekes, is that the remedy combines a declaration with a conditional order for performance in a distinctive, sui generis form.

This classification has important practical consequences. The court declares the dismissal invalid and orders reinstatement, but does not physically compel the employer to employ the claimant. The employer may instead bear the statutory financial consequences of non-reinstatement and bring the employment relationship to a final end. The monetary consequences are conditional on the subsequent statutory steps; the reinstatement judgment should therefore not automatically be treated as an unconditional money judgment enforceable in the ordinary way. If sums becoming payable are not paid voluntarily, recovery may require enforcement proceedings without a judgment or a separate action for payment, depending on the content of the decision and the applicable procedure. The declaratory aspect of the remedy is consequently significant.

2. SUBSTANTIVE CONDITIONS FOR BRINGING A REINSTATEMENT CLAIM

The statutory conditions for an employee to bring a reinstatement claim and benefit from job-security protection must, as a rule, be satisfied cumulatively. If a required condition is absent, the claim may be dismissed without the court examining whether the employer had a valid reason for dismissal. The general conditions below remain subject to statutory exceptions, including the special rules applicable to underground workers and dismissals connected with trade-union activity.

2.1. The Requirement to Employ at Least Thirty (30) Employees

Under Article 18(1) of Labour Act No. 4857, the general job-security regime requires the employer to employ at least 30 employees at the date of dismissal. Establishing and calculating this headcount can be one of the most contested aspects of the proceedings.

– Aggregating Establishments in the Same Branch of Activity

Where the employer has several establishments operating in the same branch of activity, their combined employee headcount is used to assess the 30-employee threshold. For example, if a textile company has three branches in the same industry, each employing ten people, the total reaches 30 and employees at each branch may qualify for job-security protection, provided the other conditions are met.

– Multi-Branch Businesses and the Bank-Branch Precedent

The Ninth Civil Chamber of the Turkish Court of Cassation addressed this issue in its judgment concerning multi-branch banks and large corporate organisations dated 8 May 2006 (case no. 2006/10023; decision no. 2006/13003). Even if an individual bank branch or retail outlet employs fewer than 30 people, the total workforce employed by the same employer across its branches in the same branch of activity must be considered. Banking is treated as a single branch of activity; the combined workforce can therefore exceed the statutory threshold and bring branch employees within job-security protection. This rule concerns public policy and is to be examined by the court of its own motion.

– Headcount in Principal Employer–Subcontractor Arrangements

In a lawful principal employer–subcontractor arrangement, each employer’s workforce is assessed separately. Unless the arrangement is a sham, subcontractor employees are not included in the principal employer’s headcount. If the subcontracting arrangement is found to be a sham designed to circumvent the law, however, the workers are treated as employees of the principal employer from the outset and are included in its workforce for the 30-employee calculation.

2.2. The Requirement for at Least Six (6) Months’ Service

As a general rule, the employee must have at least six months’ service at the date of dismissal to qualify for job-security protection. The legislature has set a minimum period allowing the employer to assess the employee and their performance. The statutory exception for employees working underground must also be taken into account.

• Calculating Service: The assessment includes periods that legally count towards service, including relevant periods treated as working time under Article 66 of Labour Act No. 4857. Rest days, annual leave, sickness absence and periods without work because the employer has not provided it must be assessed under the rules governing continuity of the employment relationship and the calculation of service.

• Combining Periods at Different Establishments: Periods worked for the same employer at different establishments, whether continuous or interrupted, are aggregated when calculating total service (Court of Cassation, Twenty-Second Civil Chamber, 12 September 2011, case no. 222; decision no. 584).

• Effect of a Probationary Period: An agreed probationary period counts towards the six-month service requirement. Service begins when the employee actually starts work.

• Interrupted Service and Contribution Records: Where employment has been interrupted, periods of actual work and periods legally treated as service are considered together. Social-security contribution records may provide evidence, but the statutory six-month requirement should not be reduced automatically to a separate requirement for 180 contribution days.

2.3. The Requirement for an Indefinite-Term Employment Contract

The right to seek reinstatement under the general job-security regime is available to employees working under an indefinite-term employment contract. A genuine fixed-term contract ends automatically on expiry, so the job-security provisions do not generally apply to that expiry.

Legislation and case law impose limits to prevent abuse of this distinction. Under Article 11 of the Labour Act, successive fixed-term contracts cannot be concluded without a substantive justification. Contracts repeatedly renewed without an objective and substantive reason are treated as indefinite-term contracts from the outset. As the Court of Cassation’s Ninth Civil Chamber explained on 2 May 2006 (case no. 2006/10179; decision no. 2006/12270), an employee cannot be deprived of job-security protection by unjustified successive fixed-term contracts and may bring a reinstatement claim if the relevant conditions are met.

2.4. Exclusion of Certain Employer Representatives

Under Article 18(5) of the Labour Act, employer representatives and their deputies who direct and manage the entire undertaking, as well as representatives who manage an entire establishment and have authority both to recruit and dismiss employees, are excluded from job-security protection. Because they directly exercise the employer’s managerial authority, persons within these statutory categories cannot bring a reinstatement claim under the general regime.

For the establishment-level exclusion, management of the entire establishment and authority to recruit and dismiss must both be present. A branch manager without recruitment and dismissal powers does not fall within this exclusion merely because they manage the branch and may bring a reinstatement claim if the other requirements are satisfied. The Court of Cassation looks at actual authority and organisational position rather than job titles alone.

3. GROUNDS FOR INVALIDATING A DISMISSAL AND THE BURDEN OF PROOF

An employer terminating a contract within the job-security regime must rely on a valid reason. A dismissal that does not comply with the applicable legal requirements may be declared invalid, giving rise to the financial consequences associated with reinstatement proceedings.

3.1. The Distinction Between Dismissal for a Valid Reason and Summary Termination for Just Cause

Summary termination for just cause (haklı fesih), governed by Article 25 of the Labour Act, permits immediate termination on specified grounds, including serious misconduct, conduct contrary to morality and good faith, and certain prolonged absences. Entitlement to severance depends on the particular statutory ground; immediate termination does not invariably remove all compensation rights. Dismissal for a valid reason (geçerli fesih) concerns grounds that fall short of just cause but disrupt the normal functioning of the workplace, such as performance or conduct issues or economic and technological requirements. In a valid dismissal, statutory severance and notice entitlements remain payable where their conditions are met. An invalid dismissal may be challenged by a reinstatement claim.

3.2. Incapacity and Performance-Related Dismissals

For a dismissal based on inefficiency or poor performance to be valid, the employer must comply with strict and objective requirements.

• Objective Criteria: The performance-assessment system must use concrete, measurable criteria appropriate to the work. Vague or purely personal assessments are insufficient.

• Written Warnings and Training: An employee whose performance is found inadequate should be given written warnings, training where appropriate, and a reasonable opportunity to improve.

• Opportunity to Respond: Under Article 19(2) of the Labour Act, an employee must be given an opportunity to answer allegations concerning their conduct or performance before dismissal on those grounds. The response procedure should be documented in writing. Failure to follow it may invalidate the dismissal on procedural grounds, subject to the statutory reservation for Article 25(II). The Ninth Civil Chamber’s judgment of 7 June 2006 (case no. 2005/36951; decision no. 2006/16424) illustrates the importance of this requirement independently of the substantive grounds relied upon.

3.3. Valid Reasons Relating to the Employee’s Conduct

Disruptive behaviour, persistent conflict with colleagues and neglect of duties may constitute conduct-related reasons for dismissal. The conduct must adversely affect the organisation or flow of work and be serious enough to undermine the employment relationship (Court of Cassation, Ninth Civil Chamber, 1 June 2011, case no. 2010/3363; decision no. 2011/16270).

3.4. Dismissals Based on Operational Requirements

Structural factors such as an economic crisis, declining market share, the introduction of new production technology or closure of the establishment may give rise to operational reasons for dismissal.

In such cases, the courts closely examine the principle that dismissal must be a last resort (ultima ratio). The employer must substantiate why reasonable alternatives—such as reassignment, changes to working arrangements where legally permissible, or reducing overtime—could not avoid dismissal. Dismissing an employee when suitable alternative work remains available may render the dismissal invalid (Court of Cassation, Ninth Civil Chamber, 2 May 2006, case no. 2006/10132; decision no. 2006/12262).

3.5. Allocation of the Burden of Proof

Under Article 20 of the Labour Act, the employer bears the burden of proving that termination was based on a valid reason. The employer must establish compliance with both procedural requirements, such as written notification and the opportunity to respond where applicable, and substantive requirements concerning the reason for dismissal.

If the employee alleges that the stated reason conceals a different motive, such as trade-union activity, pregnancy, discrimination or another improper purpose, the rules governing proof of that allegation also apply. Article 20 places the burden of proving a different reason on the employee, while special statutory rules on discrimination and trade-union dismissals must be considered. Witness evidence, correspondence and other evidence may support the allegation. Where the relevant conditions are established, the court may declare the dismissal invalid and award the additional or special compensation provided by law.

4. MEDIATION AND TIME LIMITS FOR BRINGING PROCEEDINGS

Reinstatement proceedings are subject to strict statutory time limits that extinguish the relevant right if missed. A failure to act in time can defeat the claim regardless of its substantive merits. Accurate calculation of the deadline is therefore essential.

4.1. Time Limit for Applying for Mediation: One Month

Under the mandatory mediation framework introduced by Labour Courts Act No. 7036, an employee must apply for mediation before bringing an action seeking reinstatement.

The application must be made within one month of service of the dismissal notice. The period is expressed in calendar months: for example, a notice served on 15 March ordinarily produces a deadline of 15 April, subject to the applicable holiday and filing rules. Calculation follows the relevant procedural rules, including Articles 91 et seq. of the Turkish Code of Civil Procedure. If the last day is an official holiday, the deadline extends to the end of the following working day.

4.2. Time Limit for Filing the Claim: Two Weeks

If mediation ends without agreement, the mediator prepares a final record confirming that no settlement has been reached. The employee must bring the claim before the competent labour court within two weeks of the date on which that final record is issued.

This two-week period is also a strict time limit. The date of the final mediation record must be checked carefully. The statement of claim must be filed with the competent court within that period, with the applicable court-fee and filing requirements observed.

4.3. When Time Begins to Run in a Dismissal by Conduct

A dismissal by conduct (eylemli fesih) occurs where the employer ends the employment relationship without serving a written dismissal notice—for example, by cancelling the employee’s access card and preventing entry or otherwise refusing to allow the employee to work. This concept should not be confused with “constructive dismissal” in common-law systems.

In such cases, time begins to run from the date on which the employee is effectively prevented from working and the employment relationship is terminated by conduct. The Twenty-Second Civil Chamber’s judgment of 18 July 2011 (case no. 2011/1620; decision no. 2011/2027) emphasises that the absence of written notice does not suspend the statutory time limit. The employee must therefore identify the effective dismissal date and apply for mediation within one month without delay.

5. SPECIAL SITUATIONS: SUBCONTRACTING, SHAM ARRANGEMENTS AND TRANSFER OF AN ESTABLISHMENT

The proper defendants and the scope of liability in a reinstatement claim depend on the employment structure. Subcontracting arrangements and transfers of establishments are among the situations requiring particular attention.

5.1. Proper Defendants and Liability in Sham Subcontracting Arrangements

Many large companies and public bodies use service-procurement or subcontracting arrangements. When dismissal is challenged in this context, the rules on joinder of parties become relevant.

The case law of the Court of Cassation’s General Assembly of Civil Chambers, including its judgment of 23 December 2009 (case no. 2009/9-526; decision no. 2009/583), and the Ninth Civil Chamber requires the principal employer and subcontractor to be joined in reinstatement proceedings so that the nature of the relationship and the parties’ respective obligations can be determined. This procedural requirement applies whether or not the arrangement is ultimately found to be a sham. If the claim is brought against only one employer, the court must address the missing party under the applicable joinder rules and allow the necessary procedural steps.

Where the arrangement is found to be a sham, the court treats the employee as having been employed by the principal employer from the outset. Reinstatement is then directed to that employer. The financial consequences, including remuneration for the period out of work and compensation for non-reinstatement, may give rise to joint and several liability in accordance with the applicable rules (Court of Cassation, Ninth Civil Chamber, 24 January 2011, case no. 2009/44022; decision no. 2011/162).

5.2. Effect of a Transfer of the Establishment on Reinstatement Proceedings

A transfer of an establishment to another individual or legal entity, by sale, lease or another transaction, during the proceedings or shortly before dismissal can affect the employment relationship and the identity of the responsible employer.

Under Article 6 of the Labour Act, employment contracts existing on the transfer date pass to the transferee with their associated rights and obligations. A transfer while a reinstatement claim is pending does not automatically make the proceedings moot. The reinstatement obligation and the proper parties must be assessed in light of the transfer, including the position of the transferee. For debts arising before the transfer and payable on the transfer date, the transferor and transferee are jointly liable within the statutory framework; the transferor’s liability is limited to two years from the transfer. This rule should not be treated as an unrestricted two-year guarantee of every employment claim.

5.3. Death of the Employee or Closure of the Establishment

The employee’s death during the proceedings or complete closure of the establishment may affect the relief available and requires a separate assessment of personal and monetary claims.

• Death of the Employee: If the employee dies during the proceedings, the personal request to resume work can no longer be fulfilled. The heirs may nevertheless pursue the relevant monetary claims, including remuneration and other entitlements for the period out of work within the statutory maximum of four months, insofar as the conditions are met. Compensation for non-reinstatement is not payable merely because death prevents a return to work (see the judgment cited in the source article: Court of Cassation, Ninth Civil Chamber, 21 December 2009, case no. 2009/10080; decision no. 2009/3632).

• Closure of the Establishment: Complete closure may make an actual return to work impossible. It does not, however, automatically validate an earlier dismissal or extinguish all issues in the proceedings. The court must assess the validity of the dismissal and any financial consequences according to the timing and circumstances of the closure.

6. IMPLEMENTING A REINSTATEMENT DECISION AND ITS FINANCIAL CONSEQUENCES

Once a decision declaring the dismissal invalid and ordering reinstatement becomes final, the employee and employer must follow the statutory procedure and observe the applicable deadlines in order to give effect to the decision.

6.1. The Employee’s Obligation to Apply Within Ten (10) Working Days

The employee must apply to the employer to resume work within ten working days after the final court judgment or private arbitral award is served on the employee or their representative. A mediation settlement is a separate instrument: the agreed reinstatement date and terms must be examined rather than automatically applying the rule for service of a final judgment.

This period is measured in working days and must be calculated under the applicable Turkish rules; it should not automatically be equated with a Monday-to-Friday calendar. A notarial notice is strongly advisable as evidence of a timely application, but notarisation is not itself a statutory condition of validity. The employee’s intention to return must be genuine and unconditional. Failure to apply in time causes the dismissal to take effect as a valid termination under Article 21 and defeats the special reinstatement-related claims; any ordinary severance and notice entitlements must still be assessed under their own rules.

6.2. The Employer’s One-Month Period to Reinstate and the Requirement of Good Faith

Once the employer receives the employee’s genuine application, the employer has one month to put the employee back to work under the statutory reinstatement framework.

An invitation alone is insufficient: it must reflect a genuine intention to resume employment. The employer must offer reinstatement to the former work on the corresponding terms and at the appropriate status. An offer designed to deter the employee—such as materially reduced pay, unjustified reassignment to a distant branch or a demotion—may not constitute a genuine invitation. The Ninth Civil Chamber’s judgment of 5 December 2018 (case no. 2015/25243; decision no. 2018/22436) illustrates that an invitation lacking a genuine intention to reinstate may be treated as non-reinstatement, triggering the relevant compensation liability.

6.3. Remuneration for the Period Out of Work: Up to Four Months

The employee may be entitled to wages and other benefits for the period during which they were not employed pending final determination, subject to the statutory maximum of four months and the requirements of the reinstatement procedure.

This head of claim includes gross pay and the other employment benefits that must be taken into account, such as qualifying meal and travel allowances, heating support, bonuses and other regular benefits (Court of Cassation, Ninth Civil Chamber, 21 June 2004, case no. 2004/13920; decision no. 2004/15277). The nature of each benefit and the relevant calculation date must be assessed; Article 21 requires the court to determine the monetary amounts by reference to pay at the date the claim was filed. Remuneration for the period out of work is generally subject to Turkish social-security contributions and the applicable income-tax and stamp-duty rules, like employment income.

6.4. Compensation for Non-Reinstatement: Four to Eight Months’ Pay

If the employer fails to reinstate an employee who has applied in time within the one-month period, compensation for non-reinstatement becomes payable in the amount determined by the court: normally between four and eight months of basic gross pay, excluding additional benefits.

The employee’s length of service and the circumstances of dismissal are relevant to the amount. The following bands reflect the general approach developed in Court of Cassation case law and are guidelines rather than an automatic statutory tariff:

• For employees with up to five years’ service: generally four months’ pay.

• For employees with between five and fifteen years’ service: generally five months’ pay.

• For employees with more than fifteen years’ service: generally six months’ pay or more, within the applicable statutory framework (General Assembly of Civil Chambers, 15 July 2009, case no. 2009/9-314; decision no. 2009/361).

Because this payment is compensation rather than wages, statutory compensation for non-reinstatement is generally exempt from income tax and Turkish social-security contributions. Stamp duty may apply; the rate stated in the source article is 7.59 per thousand (0.759%), and the applicable rate and exemptions should be checked at payment (see also the judgment cited in the source: Ninth Civil Chamber, 10 November 2003, case no. 2003/18919; decision no. 2003/18913). Special rules apply to trade-union compensation and should not be confused with the ordinary four-to-eight-month regime.

6.5. Setting Off and Repaying Compensation Already Paid

If severance pay and payment in lieu of notice were paid at dismissal and the employee is subsequently reinstated, the amounts previously paid are set off against the remuneration payable for the period out of work in accordance with Article 21 (Court of Cassation, Ninth Civil Chamber, 11 November 2004, case no. 2004/9470; decision no. 2004/25635). If the employee is not reinstated, severance and notice entitlements must be recalculated where required, taking account of sums already paid; any outstanding difference may be claimed.

7. SUMMARY OF STRICT STATUTORY DEADLINES

8. COMPARISON OF FINANCIAL ENTITLEMENTS FOLLOWING REINSTATEMENT PROCEEDINGS