1) WHAT IS A REINSTATEMENT LAWSUIT? WHO CAN FILE A REINSTATEMENT LAWSUIT?

The right to file a reinstatement lawsuit is granted only to employees who fall within the scope of job security. Accordingly, pursuant to Article 18 of the Labor Law, in workplaces employing thirty or more employees, an employer who terminates an employee’s indefinite-term employment contract must have the employee possess at least six months of seniority and must rely on a valid reason arising from the employee’s competence or conduct, or from the requirements of the enterprise, the workplace, or the job. For employees working in underground operations, the seniority requirement does not apply.

According to the last paragraph of Article 18; this article, as well as Articles 19 and 21 and the last paragraph of Article 25, shall not apply to employer representatives and their assistants who manage and administer the entire enterprise, and to employer representatives who manage and administer the entire workplace and who have the authority to hire and dismiss employees. In other words, employer representatives and their assistants who have the authority to manage and administer the entire enterprise (such as general managers and deputy general managers) are not covered by job security and therefore cannot file a reinstatement lawsuit. Likewise, employer representatives who manage the entire workplace and have the authority to hire and dismiss employees are also not entitled to job security under the Labor Law.

Job security imposes certain obligations on the employer. For example, termination must be made in writing. Article 19 of the Labor Law provides that the employer must notify the termination in writing and clearly and definitively state the reason for termination. An employee’s indefinite-term employment contract cannot be terminated for reasons related to the employee’s conduct or performance without first obtaining the employee’s defense against the allegations. However, the employer’s right to terminate under the conditions set forth in subparagraph (II) of Article 25 is reserved.

 

2) WHAT IS MEANT BY THE REQUIREMENTS OF THE JOB, THE ENTERPRISE, AND THE WORKPLACE IN A REINSTATEMENT LAWSUIT?

In terminations based on internal business reasons, the issues to be considered by the courts are whether the managerial decision has actually been implemented in practice and whether, upon the expiration of the notice period, the employee’s opportunity to work at the workplace has been eliminated.

Court of Cassation Decision – 9th Civil Chamber, File No. 2024/5208, Decision No. 2024/7872, dated 7.5.2024:
When it is alleged that the termination was made due to reasons arising from the requirements of the enterprise, the workplace, or the job, the employer’s managerial decision must be sought; circumstances preventing the performance of work, in other words preventing employment, must be examined; it must be clarified whether an excess of labor has arisen as a result of the managerial decision, whether the employer has applied this decision consistently (consistency review), whether the employer has acted arbitrarily in the termination (arbitrariness review), and whether the termination was unavoidable as a result of the managerial decision (proportionality review / the principle that termination should be a last resort).

In order for such a decision to be taken based on business requirements and for the employee’s employment contract to be terminated accordingly, it must be examined whether termination was a last resort. Within this scope, it should be evaluated whether there is another position in which the employee could be employed.

 

3) WHICH ITEMS CAN BE CLAIMED DURING MEDIATION IN A REINSTATEMENT DISPUTE?

An examination of mediation records shows that, in general, mediation is sought not only for reinstatement but also for other employee receivables. If mediation has been initiated for reinstatement together with compensation for non-reinstatement, it is not necessary to apply for mediation again. In this way, mediation will have been sought at least for the receivables that have become due up to that time, and it will not be necessary to apply for mediation again when subsequently filing a lawsuit. However, considering that mediation is possible only for receivables that have become due up to that time, depending on the outcome of the reinstatement lawsuit—for example, if reinstatement is ordered but the employee is not reinstated—the termination date will be deemed to be the date on which the employee was not reinstated. Therefore, a new mediation process may be required for severance and notice compensation arising during that period.

Regional Court of Justice Decision – Sakarya RCJ, 11th Civil Chamber, File No. 2025/105, Decision No. 2025/528, dated 5.3.2025:
[Translation of the decision summary:] It was understood that upon the claimant’s dismissal, the claimant applied to a mediator on 06.01.2023 for reinstatement, wages for the period not worked, compensation for non-reinstatement, and certain receivables; that a mediation non-agreement record dated 20.01.2023 was issued; that the claimant subsequently filed a reinstatement lawsuit; that the court rendered a decision regarding reinstatement and its consequences; that the decision became final after appellate review; that the claimant initiated enforcement proceedings for wages for the period not worked and compensation for non-reinstatement; that the employer objected to the enforcement regarding the compensation for non-reinstatement; that the claimant filed an action for annulment of objection; that the claimant filed another lawsuit for severance pay, notice pay, and annual paid leave receivables; that this lawsuit was consolidated; and that both the main and consolidated cases were dismissed on procedural grounds due to the absence of mediation.
The issue to be resolved is whether the pre-lawsuit mediation application fulfilled the condition of action for the compensation for non-reinstatement. Since the employee became entitled to file a reinstatement lawsuit and to claim compensation for non-reinstatement and wages for the period not worked upon dismissal, and since mediation was applied for and a non-agreement record was issued on 20.01.2023, and since the compensation for non-reinstatement was calculated as of the date of the reinstatement lawsuit, it was concluded that a new mediation application after the reinstatement lawsuit was not required. Therefore, it was erroneous to dismiss the main case on procedural grounds instead of deciding on the merits after collecting evidence.

 

4) TIME LIMIT FOR FILING A REINSTATEMENT LAWSUIT

An application must be made to a mediator within one month from the notification of termination; and a lawsuit must be filed within two weeks following the issuance of the final mediation record. Both periods are forfeiture periods, and attention must be paid to these time limits before filing a lawsuit.

 

5) CLAIMING OTHER EMPLOYEE RECEIVABLES TOGETHER WITH A REINSTATEMENT LAWSUIT

When reinstatement and other termination-related receivables are claimed together, in practice, the claims for other receivables may be severed and treated as a preliminary issue, or the case may be dismissed directly on procedural grounds. Generally, where there is a termination-related claim, the reinstatement lawsuit should be treated as a preliminary issue, and direct dismissal is not deemed appropriate.

Court of Cassation Decision – 22nd Civil Chamber, File No. 2016/3247, Decision No. 2019/276, dated 9.1.2019:
From the case file, it is understood that the claimant filed a lawsuit claiming severance and notice compensation and overtime pay, and also filed a reinstatement lawsuit on the same day; that the reinstatement lawsuit was dismissed on the ground that the termination was based on just cause; and that upon appeal, the decision was upheld with a different reasoning, finding that the act did not constitute just cause but did constitute a valid reason. An employee may file a lawsuit for severance and notice compensation in addition to a lawsuit for invalidity of termination. In such a case, the lawsuit regarding invalidity of termination should be treated as a preliminary issue.

Procedural Dismissal Without a Severance Decision:
Court of Cassation, 9th Civil Chamber, File No. 2016/16286, Decision No. 2019/3512, dated 13.2.2019: According to the Chamber’s practice, while a reinstatement lawsuit is pending, the employment contract is suspended and termination has not yet occurred. Therefore, during this period in which termination is suspended, rights dependent on termination cannot be the subject of a lawsuit or claim. Accordingly, claims for severance pay, notice pay, and annual leave pay filed prematurely should be dismissed on procedural grounds.

 

6) ACCEPTANCE OF A REINSTATEMENT LAWSUIT

Within 10 business days from the notification of the final decision accepting the reinstatement lawsuit, the employee must apply to the employer. The employer is obliged to respond to the reinstatement application made in due time and to reinstate the employee within one month. Reinstatement must occur within one month from the employee’s request to return to work.

1. If the reinstatement decision becomes final in favor of the employee, but the employer does not reinstate the employee despite a timely application, the employment contract shall be deemed terminated on the date the employer fails to reinstate the employee. In this case, the termination date changes; however, this does not affect the ancillary claim in an alternative lawsuit.

OFFSET: As a result of the change in the termination date, differences in severance and notice compensation may arise. Moreover, when reinstatement is ordered, any severance and notice compensation previously paid shall be offset against the wages for the period not worked.

2. If the reinstatement decision becomes final in favor of the employee, but the employee fails to apply to the employer in due time, or fails to accept the employer’s timely invitation to return to work, the initial termination shall become valid. This situation also does not affect the ancillary claim. In such a case, the termination by the employer produces the consequences of a valid termination pursuant to Article 21/5 of the Labor Law, and the employee shall not be entitled to compensation for non-reinstatement or wages for the period not worked.

 

7) DISMISSAL OF A REINSTATEMENT LAWSUIT

If the reinstatement lawsuit is dismissed, the termination shall be deemed valid in accordance with the court’s decision.

With Our Best Regards, 

U&T LAW AND CONSULTING