Introduction
Is an employee who wins a re-employment lawsuit obliged to return to work? The obligation of an employee who wins a re-employment lawsuit to return to work, and the legal consequences of this process, are tied to specific procedures and the “sincerity” criterion within the framework of Article 21 of Labor Law No. 4857 and the precedents of the Court of Cassation. The employee is obliged to apply to start work after winning the court case, and the results of this application and the subsequent process are detailed below.
1. Reinstatement Lawsuit: Application to Start Work and Legal Deadlines
In accordance with Article 21, Paragraph 5 of Labor Law No. 4857, an employee who wins a re-employment lawsuit must apply to the employer to start work within ten business days from the date of notification of the final court or private arbitrator’s decision (Supreme Court 9th Civil Chamber, 2014/21936 BasisDecision; Supreme Court 22nd Civil Chamber, 2012/2683 BasisDecision). If the employee does not apply within this period, the termination made by the employer is considered a valid termination, and the employer is only responsible for the legal consequences of this termination (such as severance pay and notice pay) (Supreme Court General Assembly, 2013/2309 Basis; Supreme Court 9th Civil Chamber, 2024/10252 Basis).
2. Principle of “Sincerity” in the Application
As consistently emphasized in Supreme Court decisions, the employee’s application for re-employment must be serious and sincere. Applications made by the employee solely to benefit from the financial consequences of the re-employment lawsuit (re-employment compensation and wages for the period of unemployment) without a genuine intention to start work are not considered valid (Supreme Court General Assembly, 2016/2592 BasisDecision; Supreme Court 22nd Civil Chamber, 2014/17324 Basis).
If the employee does not start work upon the employer’s proper invitation, it is accepted that their true intention was not to start work, and the termination becomes valid (Supreme Court 9th Civil Chamber, 2012/38628 Basis).
It has been accepted that the application of an employee who did not respond to the employer’s invitation because they were working in another workplace was not sincere (Supreme Court Assembly of Civil Chambers, 2015/1035 E.).
3. Employer’s Invitation and Employee’s Right Not to Start Work
The employer is obliged to re-employ the worker within one month from the date of the worker’s application. However, the employee’s obligation to return to work depends on the conditions offered by the employer being the same as the “previous employment conditions”:
Previous Job and Conditions: As a rule, the employee should be reinstated in their job and workplace as of the termination date. The employee must be provided with the previous conditions fully, and wage increases given to comparable employees must be reflected (Supreme Court 9th Civil Chamber, 2012/31511 E.).
Geographical Change: It is not possible to compel the employee to start work at a workplace in a different geographical location. The rejection of the employer’s request in this regard does not cause the employee to lose their reinstatement rights (Supreme Court 9th Civil Chamber, 2015/18035 E.).
Substantial Change: Invitations that include substantial changes in working conditions, such as the employer removing vehicle allocation or offering a different position, are not considered sincere. In such a case, the employee is not obliged to start work and is entitled to re-employment compensation and wages for the idle period (Supreme Court 9th Civil Chamber, 2017/18389 E.; Supreme Court 9th Civil Chamber, 2014/26213 E.).
4. Invitations During Litigation
If the employer invites the employee to work while the lawsuit is ongoing, the employee’s failure to respond to this invitation does not necessitate the dismissal of the lawsuit. The employee has the right to demand reinstatement under the guarantee of a court decision and cannot be forced to accept the invitation during the trial (Supreme Court 9th Civil Chamber, 2017/28274 E.; Supreme Court 7th Civil Chamber, 2015/22463 E.).
5. Legal Consequences of Not Starting Work
If the employee does not start work without a valid reason, despite the employer’s sincere and proper invitation:
The initial termination made by the employer becomes valid (Supreme Court 9th Civil Chamber, 2013/11419 E.).
The employee is not entitled to reinstatement compensation and wages for the idle period (Supreme Court 22nd Civil Chamber, 2012/1951 E.; Supreme Court General Assembly of Civil Chambers, 2013/681 E.).
In this case, the employee can only claim severance and notice pay, along with annual leave pay (if conditions are met), calculated based on the initial termination date (Supreme Court 9th Civil Chamber, 2014/31359 E.).
Information from Secondary Sources In decisions categorized as secondary sources, the following additional points regarding the reinstatement process have been observed:
It has been stated that if the employee returns to work while the lawsuit is ongoing, the claims for reinstatement and non-reinstatement compensation will become moot, but wages for the idle period until the date of re-employment must be paid (Supreme Court 9th Civil Chamber, 2016/24491 E.).
In cases where the employee was reinstated and employed for 6 months after the reinstatement decision, the employer was deemed sincere in implementing the reinstatement decision (Supreme Court 9th Civil Chamber, 2017/3818 E.).
It has been stated that if the employer does not reinstate the employee on the grounds of “no vacant position,” severance pay for non-reinstatement may be awarded, considering the employee’s intent to start work as fixed (Supreme Court 9th Civil Chamber, 2014/30454 E.).
It has been emphasized that in cases where the employee went to the workplace with a request to start work but was allegedly denied entry due to security reasons or a disturbance occurred, disputes during the actual re-employment process should be evaluated separately (Supreme Court 9th Civil Chamber, 2013/11734 E.). A paper suggestion.
Why is Expert Lawyer Support Vitally Important in Reinstatement Cases?
While reinstatement cases are regulated by Article 21 of Labor Law No. 4857, in practice, they are not simple disputes that can be resolved solely by the text of the law. Concepts such as “sincerity”, proper application, former working conditions, substantial change, and actual re-employment, shaped by Supreme Court precedents; can lead to different legal outcomes in each specific case.
Especially if the employee;
misses the 10-business-day application deadline,
the application is evaluated as not being sincere,
the employer’s invitation is incorrectly analyzed as to whether it is lawful,
an invitation contrary to former working conditions is erroneously accepted or rejected,
situations like these can cause the worker to completely lose their compensation for non-reinstatement and wages for the idle period. Such losses of rights lead to consequences that cannot be compensated later.
In practice, disputes regarding reinstatement processes are extremely common, especially in Istanbul, in districts with high work intensity and frequent dismissals, such as Şişli, Beşiktaş, Kadıköy, Ataşehir, Ümraniye, Pendik, Tuzla and Beylikdüzü.
At this point, 2M Hukuk Avukatlık Bürosu, operating from its base in Istanbul Tuzla, provides its clients with comprehensive legal support, including strategic advice and post-litigation processes, regarding reinstatement lawsuits, compensation for non-reinstatement, wages for the idle period, and sincerity assessments based on Supreme Court precedents.
It must be remembered that a reinstatement lawsuit does not end with a court decision; on the contrary, it is a type of lawsuit that can be lost if the correct steps are not taken after the decision. Therefore, the conduct of the litigation process and the application-reinstatement stages after the decision with the accompaniment of an expert labor law attorney is essential for the protection of the worker’s material and legal rights.
