Observation (CEACR) - adoptée 2012, publiée 102ème session CIT (2013)

Convention (n° 158) sur le licenciement, 1982 - Türkiye (Ratification: 1995)

The Committee notes the Government’s report received in November 2011 in reply to its previous comments. It also notes the various relevant decisions of the Ninth Chamber of the Court of Cassation supplied by the Government on the matters covered by the Convention. The Committee further notes the observations of the Confederation of Turkish Trade Unions (TÜRK-İŞ) and the Turkish Confederation of Employers’ Associations (TÍSK) on the application of the Convention. The Committee notes that the new Code of Obligations (Act No. 6098 dated 11 January 2011) entered into force in July 2012. The Committee invites the Government to provide information on the application of the new provisions of the Code of Obligations on the matters covered by the Convention. It would welcome continuing to receive the remarks of the Government and the social partners on the application of the Convention in practice and examples of court rulings concerning questions of principle related to the Convention (Part V of the report form).

Follow-up to the recommendations of the tripartite committee (representation made under article 24 of the Constitution of the ILO). In reply to the Committee’s previous comments, the Government indicates that Maritime Labour Law No. 854 has not been amended to cover employment protection of seafarers. The Committee recalls that in its conclusions adopted in November 2000, the tripartite committee set up by the Governing Body to examine a representation under article 24 of the ILO Constitution noted that the laws regulating the employment of seafarers did not require a valid reason related to capacity, conduct or operational requirements for termination. The Committee urges the Government again to take the necessary steps to ensure that seafarers are afforded the protection under the Convention and to provide information on the measures taken in this regard in its next report.

Article 2(2) and (3) of the Convention. Adequate safeguards against recourse to contracts of employment for a specified period of time. In its previous comments, the Committee noted the safeguards provided in Labour Law No. 4857 against the abuse of different types of contracts. The Committee notes TÍSK’s indication that the Labour Law attaches extremely harsh conditions to the use of employment contracts for a specified period of time. Moreover, the Court of Cassation strictly applies the provisions of the Labour Law regulating these contracts. Accordingly, even if there is an objective reason for stipulating a fixed-term contract, the Court does not hold that the contract is stipulated for a specified period of time if the date of termination of such contract is not clear. The party claiming that the employment contract has been stipulated for a specific period of time has the burden to prove this circumstance. The Committee notes TÜRK-İŞ’s concern that especially for auxiliary jobs some employers tend to stipulate contracts for a specified period of time with the aim of avoiding employment protection provisions. The Committee invites the Government to continue to provide examples of court decisions on the safeguards provided in the Labour Law against recourse to contracts for a specified period.

Article 2(4)–(6). Categories of employees excluded from the Convention. The Committee recalls that under section 18 of the Labour Law, employees in businesses employing less than 30 workers, employees with less than six months’ employment and employees holding a managerial position are excluded from the employment protection provisions of the Law – i.e. in terminating employees the employer does not have to depend on a valid reason. Under section 17 of the Labour Law, if the contracts of these categories of workers are terminated in bad faith, they are entitled to compensation equal to three times the notice period plus the compensation in lieu of notice if the notice period has not been respected. The Committee notes TÜRK-İŞ’s indication that, as a positive and important development, a decision of the Court of Cassation of 26 May 2005 stated that although section 18 of the Labour Law establishes the limit of 30 employees, if the number of workers in an establishment is less than 30, the collective agreement in an establishment may provide that employment protection provisions are applicable regardless of the number of employees. The aforementioned decision has been confirmed by subsequent jurisprudence. The Committee further notes TÍSK’s indication that certain grounds listed under the Convention, such as filing a complaint against the employer (Article 5(c)), are also applicable to employees that are excluded from the employment protection provisions of the Labour Law, to the extent that these grounds are accepted by the courts as being in “bad faith”, thereby rendering the worker entitled to compensation. The Committee invites the Government to continue to provide information on any developments in law and practice concerning the categories of workers excluded from the employment protection provisions of the Labour Law. It also invites the Government to include in its next report information on the impact of the decisions of the Court of Cassation on the application of the Convention.

Article 10. Remedies in case of invalid termination. In its previous comments, the Committee noted that the Turkish Employment Agency (İŞKUR) required workers who win their lawsuits for unfair dismissal to pay back the unemployment benefits they received during adjudication. The Committee notes TÍSK’s concern that a worker whose proceedings lasted for more than four months who received four months’ wages pursuant to section 21 of the Labour Law would be financially disadvantaged if required to pay back the unemployment benefits paid for the period exceeding four months. In this regard, the Committee notes with interest the decision of the Court of Cassation of 5 April 2010 stating that when an appeal procedure for unfair dismissal lasts more than four months, the repayment by the worker winning the lawsuit of unemployment benefits received during adjudication is unlawful as it contravenes the Unemployment Insurance Law No. 4447 and the principles of social security. The Committee invites the Government to continue to provide information on the application of Article 10 of the Convention.

[The Government is asked to reply in detail to the present comments in 2014.]