1. Reinstatement Lawsuit: Legal Framework and General Principles
Pursuant to Article 21 of the Labor Law No. 4857, when a decision is made regarding the invalidity of termination and the reinstatement of the employee, two main financial consequences are stipulated for which the employer is liable to pay if they do not reinstate the employee within one month:
Idle Period Wage: These are the wages and other rights accrued to the employee for the period they were not employed until the finalization of the decision, up to a maximum of four months.
Non-Reinstatement Compensation: This is the compensation determined to be paid by the employer if they do not reinstate the employee within one month upon their application, amounting to at least four and at most eight months’ wages.
2. Reinstatement Idle Period Wage and Its Scope
According to Supreme Court decisions, the idle period wage is a mandatory regulation limited to “a maximum of four months”. Courts ruling for periods such as 5, 6, or 7 months beyond this limit constitute a violation of the clear provision of the law and are grounds for reversal.
Scope: This claim item should include not only the bare wage but all rights measurable in money, such as bonuses, food assistance, travel assistance, heating assistance, and shuttle service. However, rights dependent on actual work, such as overtime, are not included in this calculation.
Calculation Basis: Wages for the idle period should be calculated according to the wages for the period following the invalid termination. If a wage increase or a new collective labor agreement comes into force during this period, these increases should be taken into account in the calculation.
Insurance Premiums: This period is added to the service period, and all insurance premiums, including those for work accidents, occupational diseases, and unemployment insurance, must be paid by the employer.
3. Non-Reinstatement Compensation and Its Determination
Non-reinstatement compensation is determined by the court, taking into account the employee’s seniority and the reason for termination.
Amount: The legal limit is a wage amount of at least 4 and at most 8 months. The Supreme Court finds it appropriate that the compensation be determined as the lower limit of 4 months in cases where the employee’s seniority is low or they are eligible for retirement.
Union Compensation Exception: In case the termination is based on union-related reasons, in accordance with Law No. 6356, non-reinstatement compensation is determined as at least one year’s (12 months’) gross wage amount, regardless of the employee’s application or whether the employer reinstates them.
Calculation Time: Non-reinstatement compensation should be calculated based on the comparable employee’s wage on the date the employee was not reinstated (the termination became final).
4. Procedural and Implementation Principles
Declaratory Nature: Since a reinstatement lawsuit is of a declaratory nature, it is sufficient to rule upon the salary for the idle period and the compensation for not reinstating the employee without specifying an amount (only in terms of months) and to determine that they must be paid. The Supreme Court finds it erroneous to issue a collection decision by specifying an amount.
Set-off Status: If the employee is reinstated, the previously paid wages for the notice period (notice pay) and severance pay will be offset from the salary for the idle period.
Application Requirement: To acquire these rights, it is mandatory for the employee to make a sincere application to the employer expressing their intention to start work within 10 business days from the notification of the final decision. Insincere applications made solely for the purpose of receiving compensation will prevent these rights from arising.
5. Concrete Examples from Decisions
In one case, the 4-month idle period wage claim was calculated and accepted as 83,666.10 TL, and the 4-month compensation for not reinstating was 100,734.67 TL.
In another example, the gross amounts paid after the final decision were recorded as; 13,775.44 TL for idle period wages and 14,126.40 TL for compensation for not reinstating.
In an affirmation decision by the 9th Civil Chamber of the Supreme Court, 51,269.01 TL net idle period wages and 59,485.06 TL net compensation for not reinstating were ruled upon.
6. Secondary Sources and Additional Context
Judicial decisions as secondary sources draw attention to the importance of calculation errors and peer wage research:
Peer Wage Research: In calculations of idle period and compensation, it is emphasized that not only workplace records but also unions, relevant professional chambers, and peer worker payrolls must be meticulously examined to determine the worker’s true wage.
Calculation Errors: It has been stated that the idle period wage should be calculated gross, but if payments are made net, attention should be paid to the gross-net distinction during offsetting.
Bonuses and Social Benefits: It has been reminded that calculations should not be made in a way that leads to duplicate payments without clarifying whether the bonus practice is reflected in the basic wage.
Interest Commencement: It has been stated that interest for the severance pay difference should accrue from the date of non-reinstatement, and special interest rates may be applied for the idle period wage. A paper suggestion.
Why is Expert Lawyer Support Necessary? | Critical Legal Support in Reinstatement Cases
Reinstatement lawsuits are types of cases that do not tolerate errors, incorporating numerous interconnected technical calculations and procedural rules, such as compensation for time spent unemployed, non-reinstatement compensation, insurance premiums, interest start dates, and offset procedures. Even a small procedural error in practice can lead to the employee losing their entitlements earned over months of effort or the employer facing unexpectedly high compensation burdens.
Specifically;
The fact that compensation for time spent unemployed is a mandatory provision limited to a maximum of 4 months,
The necessity for non-reinstatement compensation to be determined based on a comparable wage investigation,
The obligation to specify the number of months, not the amount, in the judgment paragraph,
The correct application of Supreme Court precedents regarding insurance premiums, gross-net distinction, and interest commencement,
Such matters necessitate the support of an expert labor law attorney.
At this point, 2M Hukuk Avukatlık Bürosu (2M Law Office), with its office based in Istanbul Tuzla, provides professional legal support to its clients in reinstatement cases, labor receivables, and employer-employee disputes with its expert team, who are proficient in Supreme Court practices and closely follow current precedents.
To **avoid loss of rights** in the re-employment process, to establish the litigation strategy correctly from the outset, and for receivables to be claimed **completely and in due form**, it is of great importance that the process is conducted with an expert lawyer.
