Turkish Labor Law
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İbrahim Işıklı
There are problems, especially, while declaring an employee, winning the reemployment lawsuit, to Social Security Institution (SGK). If the court has already decided to reemploy the employee, following issues would be matters of debate:
· Unless the employee applies for a job within 10 days, cancellation would be taken into account as an acceptable cancellation,
· In case the employee applies within 10 days, employer must employ him/her within a month,
· The employer is given the right of not employing the employee,
· Invalidity of the cancellation would be accepted in case the employee is employed,
· The employer, not employing the employee, should pay a compensation for not employing the employee,
· It is already considered that at most four months wage of the employee should be paid for the time he/she was unemployed. In this case; the matters of debate for the application are whether there would be a SGK (Social Security Institution) declaration or not and the related period.
If the employee does not apply for the job within ten working days starting from the announcement date of the finalized court and special arbitrator’s decision to himself or if the employee applies for the job within the required time however he does not start working upon the regular invitation of the employer; this time the cancellation process would be valid in spite of the finalized court decision regarding the fact that the cancellation was not based on a valid reason; accordingly; the employer would not have the liability of submitting premium certificate and paying premium to SGK as the employee would not have the right to claim the compensation for not being employed; wage and his other rights regarding the unemployed period which is at most four months.
If the employee applies to the employer for the job within ten working days starting from the announcement date of the finalized court or special arbitrator’s decision, regarding the reemployment of the employee, to himself; the employee shall be subject to the premium in terms of the wage paid to him at most for four months during the period of unemployment; his other rights such as all premium branches including work accident, occupational diseases and unemployment insurance premiums and those periods shall be taken into account as SGK service in the following conditions:
1) Employee being employed,
2) Employee not being employed although he wants to.
The starting date of the period regarding the said monthly premium and service certificates shall be the cancellation date of the labour contract constituting the subject matter of the lawsuit of cancellation invalidity. Accordingly; monthly premium and serving certificates shall be given for the coming period (as if the employee works in this period) starting from the said date of cancellation for the wages which will be paid for at most four months and other payments subject to the premium. In case monthly premium and service certificates, required to be issued afterwards retroactively regarding the unemployed periods according to the court or special arbitrator’s decisions, are submitted until 23rd of the month following the month which includes the tenth working day starting from the announcement date (excluding the date of announcement) of the finalized court and special arbitrator’s decision to the employee; and included premium totals are paid within the same period of time; administrative penalty fine and default interest will not be applied.
However in order to start proceedings in the mentioned way; as the verification of announcement date of the finalized court or special arbitrator’s decision to the employee is required from the employer with an effective document; a document showing when the employee was informed on the finalized court decision should also be claimed from the employee during his application on the said job.
If the employer prefers to pay compensation by not employing the employee although he applied for starting to work within 10 working days after the invalidity of the cancellation and reemployment of the employee are decided by the Labour Court; compensation for not employing amounted as minimum four and maximum eight months wages shall not be subject to premium.
However; wages and other rights entitled by the employee for the periods he was unemployed, at most four months, until the finalization of the court decision should be included into the insurance premium and those should be submitted to SGK until 23rd of the month following the finalization date of the court decision.
As the starting date of the period regarding monthly premium service certificates issued retroactively is the date on which the labour contract, being the subject matter of the cancellation invalidity lawsuit, is cancelled; monthly premium service certificate shall be given for 4 months prospectively starting from the date of cancellation, for the wages and other payments which will be paid at most for four months.
Retroactive monthly premium service certificates, which will be issued according to the decision of reemployment, should be arranged on a sheet of paper, instead of the electronic environment, and shall be submitted to the central directorate, the workplace is affiliated to, with a copy of the court decision attached to the letter of application. As the benefit of the employer shall be accepted as ineffective with the decision regarding the invalidity of the cancellation of labour contracts belonging to insured parties; no statement of employment for the employee shall be required from the employer again by the central directorate as of the cancellation date of the contract, regardless of whether the insured party starts in the same workplace or not.
Source: Dünya Gazetesi (World Journal)
