Job Security In Labor Law And The Conditions For Entitlement To Job Security

1. Introduction

Job security is one of the most important areas of labor law; and it aims to prevent the arbitrary termination of an employment contract by the employer. Regulations regarding job security limit the employer’s right to terminate and grant the employee the right to request reinstatement in the event of termination based on an invalid reason.

In today’s working world, job security is not merely a mechanism that protects the employee’s economic well-being; it also serves as a legal institution that strengthens labor peace and the principle of the social state.

2. The Concept of Job Security

Job security refers to the employer’s ability to terminate an employment contract only on grounds provided for by legislation. Accordingly, the fundamental purpose of job security, as noted above, is to prevent arbitrary terminations by the employer and to ensure the continuity of the employment relationship.

It is evident that the Supreme Court has acted in this manner in its decisions. Indeed, in its decision dated April 5, 2017, Case No. 2015/3351 E. and Decision No. 2017/651 K., the General Assembly of the Supreme Court of Appeals stated: “The purpose of the job security provisions set forth in Articles 18 and subsequent articles of the Labor Law No. 4857 is to prevent the employer from arbitrarily terminating the employment contract without a legitimate and reasonable cause, thereby ensuring the continuity of the employment relationship. The said regulations impose certain obligations on both the employer and the employee through mandatory rules and require the parties to act in accordance with the principles of good faith so that the employee may benefit from this legal protection. In other words, to ensure continuity in the employment relationship in accordance with the principles of good faith, the parties must demonstrate the conduct expected of them. For this reason, in the lawsuit filed to declare the termination invalid, the employer’s objective must be to reinstate the employee.”

3. Conditions for Entitlement to Job Security

For an employee to be eligible for job security provisions, the following conditions must be met simultaneously:

1. The employee must have been employed by the employer for 6 months or longer,

The employee’s employment with the employer must have lasted at least 6 months.

2. The employee must be working under an indefinite-term employment contract,

Under this condition, the employee must be working under an indefinite-term employment contract; as a general rule, fixed-term employment contracts are not covered by job security.

3. The employee should not be an employer representative authorized to manage the entire company (e.g., a general manager) or an employer representative* authorized to manage the entire workplace and hire/dismiss employees,

*An employee will be considered an employer representative if they have the authority to manage (i) the entire company or (ii) the workplace and to hire and dismiss employees at their own discretion.

These matters are also explicitly addressed in the decision of the 9th Civil Chamber of the Supreme Court dated April 11, 2012, Case No. 2012/10319 and Decision No. 2012/12304: “Pursuant to Article 18 of the Labor Law No. 4857, for an employee to be eligible for the provisions on job security, the employee must not be in the position of an employer’s representative or their assistants who manage and direct the entire enterprise, or an employer’s representative who manages and directs the entire workplace and has the authority to hire and dismiss employees. Since employer representatives who are ineligible for job security are, first and foremost, those who manage and direct the entire business and their assistants, general managers and their assistants who manage the entire business will not be eligible for the provisions of job security. However, it should be noted that the mere use of the title of general manager or assistant general manager at the workplace does not, by itself, result in exclusion from the scope of job security. What matters is whether they have been granted representative authority and whether they manage the entire business. In this regard, one must examine their job description and position. The second group of employer representatives who are not eligible for job security consists of those who manage the entire workplace—rather than the entire business—and who have the authority to hire and fire employees. Accordingly, while those who manage the entire business are considered employer representatives without any additional conditions, for those who manage the entire workplace—rather than the entire business—to be considered employer representatives under Article 18, they must additionally possess the authority to hire and dismiss employees. The authority to manage the entire workplace and the authority to hire and dismiss employees are required to be present together. This workplace may also be a branch of the business. Consequently, a bank branch manager or a factory manager, even if they manage the workplace, will not be considered an employer’s representative under Article 18 of the Labor Law if they do not have the authority to hire and dismiss employees at their own discretion. They are entitled to job security. Similarly, a human resources director or personnel director who possesses the authority to hire and dismiss employees but does not manage the entire workplace is entitled to the provisions of job security. However, in a workplace affiliated with a business entity, an employee who manages the entire workplace and also possesses the authority to hire and dismiss employees is not entitled to the provisions of job security. This is also the practice of our Chamber. (Our ruling dated May 26, 2008, Case No. 2007/35929, Decision No. 2008/12484).”

4. The employer must have a total of 30 or more employees across all workplaces operating in the same industry,

The total number of employees working in the employer’s workplaces within the same industry must be taken into account. In its decision dated June 14, 2010, Case No. 2009/22941 and Decision No. 2010/18541, the 9th Civil Chamber of the Court of Cassation “Pursuant to Article 18 of the Labor Code No. 4857, for an employee to be eligible for the provisions of job security, the workplace must employ 30 or more employees as of the date the notice of termination is issued. If the employer has more than one workplace within the same industry, the number of employees at the workplace is determined based on the total number of employees employed across these workplaces.”

4. Reinstatement Lawsuit Under Job Security

If an employee is covered by job security, there must be a valid or just reason for the termination of the employment contract, and the employee may also file a reinstatement lawsuit following the termination. However, the employment contract of an employee not covered by job security may be terminated by the employer without any just or valid cause (provided that the principles of good faith, the duty of equal treatment, the prohibition against discrimination, and other similar legal obligations are complied with), and in such a case, the employee cannot file a reinstatement lawsuit.

This matter is also addressed in Supreme Court decisions; in the decision of the 9th Civil Chamber of the Supreme Court dated March 11, 2009, Case No. 2007/38585 and Decision No. 2009/6617, the importance of this issue is underlined: “In the specific case at hand, whether the number of employees at the defendant’s workplace is below 30, and consequently, whether the plaintiff employee has the right to file a reinstatement lawsuit under the provisions of job security—was not investigated by the court, nor can it be determined from the case file. In this situation, it is erroneous for the court to have rendered a decision based on an incomplete investigation without first determining whether the plaintiff employee falls under the scope of job security by investigating the number of employees working at the time of termination.”

5. Conclusion

Job security is a fundamental institution of labor law that protects employees against arbitrary termination of their employment contracts by employers and aims to ensure the continuity of the employment relationship. However, to benefit from this protection, the conditions stipulated by law and listed above must be met cumulatively. Employees covered by job security may file reinstatement lawsuits against terminations made without a valid or just cause; thus, the right to work and industrial peace are legally safeguarded. In this regard, reinstatement lawsuits do not merely serve to protect individual employees; they also contribute to ensuring legal certainty and predictability in the workplace by overseeing the lawful exercise of the employer’s authority to terminate employment.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.