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RETURN TO WORK ACTION CONDITIONS
RETURN TO WORK ACTION CONDITIONS1-)It is necessary to have 30 or more workers in the workplace (The important thing is how many workers were working on the termination date of the employment contract)
- If there are unregistered (uninsured) workers, these workers should also be taken into account if proven.
- If the main employer falsely presents its workers as insured at the sub-employer, if this is proven, these workers should also be considered within the scope of 30 workers.
- If at the time of the termination of the employment contract, there are 30 fewer workers, for example 27 workers, and 4 workers’ reemployment lawsuits are still ongoing, then the reemployment lawsuits of these 4 workers should be made a pending matter. Because if the reemployment cases of these 4 workers are accepted, it means that more than 30 workers are working in the workplace.
- In a workplace that is headquartered abroad but also has a branch in Turkey, if the worker works in this branch and there are less than 30 workers in the branch, will the worker not be able to file a reemployment lawsuit? In this case, not only the branch, but also the employees abroad, which is the head office, are taken into account. In other words, if 30 workers are working together with abroad, a reemployment lawsuit will be filed. The number of workers is not limited to the branch.
- The types of employment contracts of the workers do not differ in the determination of these 30 workers. (specific, uncertain, partial) The important thing is that it works with the law no. 4857.
- Substitute workers are not included in the determination of these 30 workers. Substitute worker: For example, a worker who is temporarily taken to replace a worker on maternity leave is not taken into account in the determination of 30 workers.
2-)The Employer Must Have Terminated the Employment Contract. In other words, an employee who has left the job cannot request reemployment.
- If the employment contract has ended with the mutual rescission agreement, the reemployment lawsuit will be rejected. Termination agreement: It is the termination of the employment contract by mutual agreement of the employer and the employee. So it’s a breaking contract. In this case, the employee will not be able to file a reemployment lawsuit because he has agreed to leave the job. However, if the worker proves that this mutual rescission agreement was signed under duress, the situation changes. Here, the Supreme Court looks at whether the employer provides a reasonable benefit to the worker. In other words, a mutual rescission agreement signed without providing any benefit to the employee constitutes the presumption that it was signed under pressure from the employer. Apart from this, the worker also says, “I resign on condition that my severance and notice pay is paid.” The Supreme Court accepts the letter as an invitation letter from the employee to the employer.
- Not every resignation of the worker prevents him from filing a reemployment lawsuit. In some cases, a letter of resignation is prepared under pressure from the employer. In this case, if the worker can prove that he signed the resignation under pressure from the employer, the situation will change.
- What will be the situation when the employer wants to dismiss the worker and use the notice period, while the worker uses the notice period, demands his retirement and at the same time files a reemployment lawsuit? Here, the employer generally states that “the employee’s request for retirement shows that he does not want to return to work anyway, that is, the employee has no intention of working anyway, so it is not possible to file a reemployment lawsuit.” Even so, according to the Supreme Court, the important thing is to benefit from the job security of the worker and retirement is a right granted to the worker. For this reason, the worker who wants his retirement has the right to return to work.
- If the employee does not come to work, after the employer terminates the employment contract with just cause because the employee did not give a valid excuse to the warning issued as a result of the minutes kept, the employee has the right to be reemployed, even if he does not respond to the warning, if the employee files a reemployment lawsuit and declares a valid excuse in the case file regarding the absence of work at that time.
3-)The Notice of Termination Must Be Written and the Reason for Termination Must Be Clearly Stated. The Employer will then not be able to rely on any other reason other than the reason in this Written Termination Notice.
4-)The Worker must have at least 6 months of seniority in that workplace.
- If the worker has intermittent work in that workplace, these are combined.
- If the worker was sent for training before he started to work, his insurance was notified after he came to work, and he started to work, this training period should be included in seniority according to some Supreme Court decisions, and should not be included in seniority according to some Supreme Court decisions.
- The probationary period is included in seniority.
5-)If the Worker is the Employer’s Representative, He/She will not be able to make a request for reemployment.
6-)The Employee’s Employment Contract must be of an indefinite term.
- Even if there is a term in the contract, if there is no objective reason to show that the contract is valid for that period, in this case, a reemployment lawsuit may be filed, since a fixed-term employment contract cannot be mentioned.
- The situation of teachers working in private schools is an exception. The employment contract of these teachers is arranged for 1 year as per the law. In the past, there were contradictions between the decisions of the Supreme Court. In some decisions, it was stated that these people could file a reemployment lawsuit, while in some decisions it was stated that they could not. Finally, the case law was combined and it was decided that teachers working in this way could not file a reemployment lawsuit.
RETURN TO WORK OPENING TIME
1-Mediation is also obligatory in reemployment cases. It is necessary to apply to a mediator within 1 month from the date of notification of termination to the worker. Even if the employee is given the notice period, the application period will not start from the end of the notice period, but from the date of the termination notice.
2-If an agreement cannot be reached in the mediation application, there is a 2-week period to file a lawsuit from the date of signing the last minute.
3-If an agreement is reached in the mediation application, the content of the report is important. The content of the report should be written in detail, just like a court order. How many months are idle, what is the amount of these months, how much is the compensation for starting work if it is not provided, when it is agreed on starting work, when the worker will start work, in which position he will work, how much wage he will receive, etc. conditions should be described in detail.
ITEMS THAT CAN BE REQUESTED IN RETURN TO WORK ACTION
1-Idle Time Must Be Requested.
- The worker has the right to demand a maximum of 4 months wasted time.
- Idle time means that the worker is entitled to his salary as if he had worked for that 4 months. In this case, the insurance premium must be paid.
- If the worker has started to work in another job during this 4-month period, he/she will not be entitled to idle time compensation.
2-Return to Work Must Be Requested. If the Employer Does Not Re-employ the Worker, Non-Restarting Compensation Must Be Requested. (4-8 Months)
- If the employee’s reemployment case is accepted, the employee must make a request to the employer for reemployment within 10 days from the finalization of this decision. The employer must invite the employee to work within 30 days from the date of notification of this request to the employer. The main thing here is that the worker started to work within these 30 days. For this reason, the Court of Cassation states that compensation for not starting work should be paid because it does not find it sincere that the employer invites the worker to work on the 30th day.
IF RETURN TO WORK ACTION IS APPROVED, THE EMPLOYEE’S COMPENSATION FOR THE EMPLOYEE’S IMPLIED TIME AND NOT STARTING THE WORK, THE COURT STATEMENT ONLY THE NUMBER OF MONTHS IN THE COURT STATEMENT (4 MONTHS LAST TIME AND 6 MONTHS LAUNCHED PERIOD. THE SALARY OF THE WORKER CORRECTING THE NUMBERS OF THIS MONTH MUST ALSO BE DETERMINED. FOR THIS REASON, THE FILE SHOULD BE SENT TO THE EXPERT BEFORE MAKING THE DECISION AND THE AMOUNT TO BE PAID SHOULD BE DETERMINED SO THAT ALL POSSIBILITIES WILL BE EVALUATED.
IN CASE OF NON-START WORK, LEGAL INTEREST WILL APPLY TO THE DATE WHERE THE BUSINESS IS NOT STARTED, NOT THE DATE OF THE WARRANTY.
DUE TO THE IMPLIED TIME IS FEES, THE INTEREST ON THE NORMAL FEES WILL APPLY HERE.
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