Events
The trade union of which the applicant was a member decided to strike in January 2015 and the Council of Ministers decided to postpone the strike. Following the postponement, all workers at the respondent workplace, including the applicant, staged work slowdowns lasting 20-25 minutes a day. Thereupon, the respondent workplace terminated the employment contracts of thirty workers, including the applicant.
In the lawsuit filed by the applicant for reinstatement and trade union compensation, the labour court partially accepted the lawsuit and decided to reinstate the applicant and to reject the claim for trade union compensation. The judgement of the court of appeal was overturned by the Court of Cassation on the grounds that the applicant had acted despite the strike suspension decision and the case was dismissed definitively.
Allegations
The applicant claimed that the termination of his employment contract due to his participation in the work slowdown action, despite the postponement of the strike decision taken by the trade union by the Council of Ministers, violated his right to freedom of association.
The Court’s Assessment
Considering the importance of the constitutionally guaranteed right to strike, the reason limiting/forcing this right must be convincingly and clearly demonstrated. Otherwise, the exercise of the constitutional right to strike and collective bargaining becomes virtually meaningless. In this respect, short-term protests against practices affecting the economic, social and working conditions of workers, which are in the nature of the exercise of a democratic right, should be tolerated. In the concrete case, the Court of Cassation stated that the applicant committed an unlawful action and his employment contract was terminated for valid reasons only due to the existence of the strike postponement decision; it did not make any further assessment.
Considering that the action in which the applicant participated was short-term and peaceful and aimed at expressing the disputes regarding the collective labour agreement, the said action should be evaluated within the scope of the right to union. In addition, the extent to which the employer has to tolerate the protests subject to the application should be addressed. According to the first instance court, all workers at the workplace organised work slowdowns lasting 20-25 minutes for eleven days and these actions did not cause irreparable damage. The employer dismissed thirty workers on the grounds of loss of production. However, as emphasised by both the Court of First Instance and the Court of Cassation, the employer did not provide any explanation as to how it determined the number of thirty workers it dismissed. Moreover, the employer did not clarify the applicant’s duties at the workplace, the reason for his participation in the work slowdowns, the burden it imposed on him, and whether it had any effect on other workers. In this respect, the employer failed to show that the applicant’s actions went beyond the aim of seeking his democratic rights. On the other hand, the applicant suffered a severe consequence and lost his job as a result of his action within the framework of his trade union rights. In this context, it is clear that the application of the principle of last resort developed by the Court of Cassation in cases of termination of employment is vital for the protection of fundamental rights and freedoms. However, in the concrete case, it has been observed that the principle of last resort was not considered in the termination of the applicant’s employment contract.
Within the scope of these explanations, it is concluded that the employer’s interference with the applicant’s trade union right in the concrete application would have a deterrent effect on his and others’ exercise of their trade union rights, whereas the state failed to fulfil its positive obligations due to the lack of an effective judicial review required by the constitutional right in question by the courts of first instance.
The Constitutional Court decided that the right to trade union was violated for the reasons explained.
You can access our other article examples and petition examples by clicking