Constitutional Court's decision on violation of rights in reinstatement case

According to the decision published in the Official Gazette, Gülşah K., who started working as an investment specialist in a bank on March 15, 2021, was dismissed on September 13, 2021, due to "insufficient performance".

The notice of termination was notified to Gülşah K., who was on sick leave between 5-18 September 2021 due to Covid-19, on 18 September 2021.

Thereupon, Gülşah K, who filed a lawsuit with the Istanbul 11th Labor Court demanding "reinstatement", stated that she met the 6-month seniority condition as of the notification date of the termination notice.

Stating that she was constantly appreciated by her managers during her employment, Gülşah K. claimed that her dismissal due to "insufficient performance" was unfair and unlawful.

In its response petition, the defendant bank argued that the employee's employment contract was terminated for justified reason on September 13, 2021, and that the 6-month seniority condition, which is one of the conditions for reinstatement, was not met.

LOCAL COURT DECISIONED "REINSTALLMENT"

The local court, which decided to reinstate Gülşah K, ruled that the plaintiff be paid 43 thousand 666 liras in compensation if the employer does not reinstate her.

In the decision, it was reminded that the plaintiff's employment contract was terminated 2 days before his seniority was 6 months, and that the notice was notified on September 18, 2021, because he was on leave, and therefore he should benefit from the job security provisions.

The decision also pointed out that since the plaintiff's defense was not taken before the termination, the termination was invalid if it was not made in accordance with the form and conditions.

THE COURT OF APPEAL FOUND THE BANK RIGHT

Upon objection to the decision, the 31st Civil Chamber of the Istanbul Regional Court of Justice, which heard the file, found the defendant bank right.

Accepting Gülşah K's seniority at the workplace as 5 months and 28 days, the chamber concluded that the plaintiff could not benefit from job security provisions and decided to reject the case.

A RETRIAL WILL BE HELD

Following the decision, Gülşah K. made an individual application to the Constitutional Court.

Deciding that the right to a reasoned decision within the scope of the right to a fair trial guaranteed in Article 36 of the Constitution was violated, the Supreme Court ruled that the decision be sent to the 31st Civil Chamber of the Istanbul Regional Court of Justice for a retrial to eliminate the consequences of the violation.

In the Constitutional Court's decision, it was pointed out that the local court, which accepted that the 6-month seniority requirement was fulfilled based on the date on which the medical report and termination notification were received by the applicant, explained this with justification in its decision.

In the decision, it was stated that the court of appeal did not provide sufficient justification as to why it rejected the case.