Events
The applicant’s employment contract was unilaterally terminated by the foundation where he had worked for 11 years and 6 months. The applicant filed a lawsuit for the determination of the invalidity of the termination and for his reinstatement. The labour court stated that the applicant’s employment contract was terminated within the scope of the Decree Law No. 667 on the Measures Taken within the Scope of the State of Emergency (Decree Law No. 667), and therefore it was not possible to audit the transaction made pursuant to the Decree Law No. 667.
Upon the application for appeal, the regional court of appeal reversed the decision of the labour court. Following the reversal, the labour court stated that it could not be proved that the termination of the applicant’s employment contract by the foundation was based on a valid reason. The foundation appealed against this decision on the grounds that the employment contract had been terminated for just cause and that the number of employees in the foundation was less than thirty and therefore the conditions for reinstatement were not met.
Allegations
The applicant claimed that the right to a fair trial and the right to respect for private life were violated due to the failure to resolve the ongoing disagreement between the chambers of the Court of Cassation on the determination of the number of employees, and that the presumption of innocence was violated due to the termination of his employment contract based on the allegations made against him.
The Court’s Assessment
In the concrete case, the main issue is to determine whether the defendant employer employed thirty or more workers as of the date of termination. While determining the aforementioned issue, the courts did not take into consideration the number of employees working in all social assistance and solidarity foundations in Turkey, but only the number of employees working in the defendant foundation. However, there are differences of opinion among the chambers of the Court of Cassation in determining the number of workers. The 9th Civil Chamber of the Court of Cassation is of the opinion that the number of employees working in social assistance and solidarity foundations in the whole country should be taken into consideration and the employees working in these foundations should benefit from labour protection. The 22nd Civil Chamber, on the other hand, argued that the number of workers in each foundation should be determined separately, and accordingly, whether the workers can benefit from the labour protection provisions should be determined, considering that each foundation is an independent employer with a private law legal entity and a separate workplace.
In a legal system, it is natural that differences in judicial precedents may occur for various reasons. The change of jurisprudence by the courts of first instance, which have the authority to interpret and apply the rules of law, cannot be considered as a violation of the right to a fair trial on its own, as long as it is adequately justified. However, the most important duty to ensure that these jurisprudential differences do not harm the principles of legal security and legal certainty falls to the higher courts.
As a matter of fact, in the concrete case, the difference in question was referred to the General Assembly of the Court of Cassation and the Board unified the case law in the direction that only the number of employees of each foundation should be taken into consideration when determining the number of employees, which is one of the prerequisites for benefiting from the job security provisions.
Following the unification of the case law in this direction, the Law No. 3294 on Social Assistance and Solidarity Encouragement was amended to be effective as of 25/5/2018, and with this legal amendment, the Supreme Court of Cassation chambers considered that the aforementioned case law unification decision was abrogated. The chambers adopted the view that the number of employees working in social assistance and solidarity foundations throughout the country should be taken into account with the aforementioned amendment, and thus, the employees working in the aforementioned foundations will benefit from the labour protection provisions. In the cases filed after the aforementioned legal amendment, the Court of Cassation did not see a problem in terms of the number of workers in order for the workers in the aforementioned foundations to benefit from labour protection.
As a result, it has been observed that the difference of jurisprudence that existed at the time of the termination of the applicant’s employment contract was resolved through the relevant legal mechanism of unification of jurisprudence and by adopting the interpretation to the detriment of the applicant. With the subsequent legal amendment, although a favourable regulation was made for the workers, the applicant was not benefited from this regulation considering the date of termination of the employment contract. However, the unfavourable interpretation regarding the effect does not contain an obvious error of appreciation or arbitrariness. On the other hand, considering the fact that it has not been revealed that the difference in case law continued after the closure of the 22nd Civil Chamber of the Court of Cassation, it has been concluded that the fairness of the proceedings has not been damaged.
For the reasons explained, the Constitutional Court decided that the right to a fair trial within the scope of the right to a fair trial was not violated.
You can access our other article examples and petition examples by clicking