Union Compensation, Its Scope and Reemployment Lawsuit

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A. TRADE UNION FREEDOM AND ASSURANCE

Article 25 of the Law on Trade Unions and Collective Labour Agreements No. 6356 regulates trade union assurance. Whereas with the provision of the said article, it cannot be acted in the recruitment and in the termination of the employment contract under any conditions relating to their union membership, it is also stipulated that no distinction shall be made by the employer between employees who are members of trade unions and those who are not members of trade unions during the work of such workers. In addition, according to Article 5 of the Labor Code reinforces this principle by mandating that employees must be treated with the principle of equality, except in cases where substantial reasons necessitate discrimination. These regulations constitute a special aspect of the principle of "equality" in Article 10 of the Constitution.

According to the third paragraph of Article 25 of the relevant law, "Employees shall not be dismissed or subjected to differential treatment for any reason due to the fact that they are or are not members of a trade union, participate in the activities of workers' organizations or engage in trade union activities outside of working hours or during working hours with the consent of the employer." The term "employees" in the text of the article in question covers not only employees who are members of trade unions, but also employees who are not members of a union. Accordingly, if non-union employees also participate in trade union activities, they will undoubtedly be able to benefit from the guarantees defined in this article.

In accordance with the first paragraph of Article 25 of the Law on Trade Unions and Collective Labour Agreements, "The hiring of employees shall not be conditioned on their entry or non-entry into a particular trade union, or on their maintenance or withdrawal from membership in a particular trade union, or on their membership or non-membership in any trade union." This provision also prohibits employers from compelling employees to become a member of a trade union or not, and from making any distinction between employees based on their union membership status. In addition any clauses in collective labour agreements or labor agreements that are inconsistent with these regulations shall be deemed null and void in accordance with the canonical impediments rules and the remaining articles of the contract shall remain effect.

As stated earlier, the employer's obligation not to discriminate against employees on trade union grounds applies the same way throughout all stages ofthe employment relationship: recruitment, continuation of the employment relationship and termination. Accordingly, the employer must not make any distinction between the employees in the stage of recruitment, employment, and the termination of the employment contract, due to their union membership, union activity, not being a member of any trade union, or not being a member of a certain union. In the event of any breach of this obligation by the employer, the discriminated employee shall have the right to claim compensation in the amount of at least one year's wages. This compensation is called "union compensation". However, the fact that the employer has applied a different practice among the employees, especially between wages, premiums, bonuses and working conditions, taking issues such as seniority, education, ability, experience, diligence and performance into consideration, regardless of the unionization status among them, will not constitute a violation of the obligation to act equally. According to the second paragraph of Article 25 of the Law on Trade Unions and Collective Labour Agreements, which constitutes an exception to the prohibition for employer on distinguishing between unionized and non-unionized employees, "The provisions of the collective labour agreement on wages, bonuses, premiums and social assistance related to money are reserved." As per this provision, the wage, bonus, premium and money issues of the collective labour agreement applied in the workplace constitute an exception to the employer's obligation to take equal treatment. Accordingly, premiums are applied to employees who are parties to the collective labour agreement, it seems possible not to apply premiums to employees who are not members of the union.

Article 39, paragraph four of the Law on Trade Unions and Collective Labour Agreements states that "The ability of those who are not members of the trade union at the time of signature of the collective labour agreement, who subsequently entered the workplace but are not members, or who are members of the union that is party to the agreement on the date of signature but leave or are dismissed, to benefit from the collective labour agreement depends on the payment of solidarity dues to the labor union which is a party to the collective labour agreement. The approval of the labour union is not required for this. The utilization of the collective labour agreement by paying solidarity dues is valid from the date of the request." Accordingly, only employees who are members of a trade union or who pay solidarity dues will be able to benefit from the provisions of the collective labour agreement relating to Money. On the other hand, all employees shall benefit from provisions not related to money (working hours, disciplinary rules, termination of employment contract, occupational health and safety, etc.), since the employer's obligation to take equal treatment will continue. Furthermore, the employer will also be within the scope of this prohibition on changing the working places of some employees who are members of the union. In this case, the amendment in question is also of nature that may constitude a material change against the employee and in this case, in accordance with Article 22 of the Labor Law, the written consent of the employee must be obtained. Otherwise, the relevant amendment shall not be binding for the employee. However, it should not be forgotten that the changes in the place remaining within the scope of the employer's management authority are not included in this scope. On the other hand, if the employer changes the employee's job and/or place of work solely because the employee is a member of a trade union, without the written consent of the employee, the employer will have made a material change in the working conditions against the employee and will have acted contrary to the obligation of equal treatment. In such cases, as mentioned earlier, the employee shall not obliged to comply with such an instruction or to accept the written offer. In such a case, the employee will be ready to perform the work specified in the employment contract and the employer will have been in default in contract because this job is not given to the employee. In this case, in accordance with Article 408 of the Turkish Code of Obligations, the employee is entitled to the wage to which (s)he is entitled in return for work without fulfilling his obligation. In this case, the employee may also claim union compensation on the grounds that her/his job or place of work has been changed for union reasons. In fact, the employee may not only do this, but also terminate the employment agreement for just cause and demand both union compensation and severance pay. As can be seen, in order to claim trade union compensation, it does not matter by which party the employment contract is terminated or whether the employment contract is terminated.

The law does not provide complete clarity on which situations, actions and behaviors require compensation for trade union reasons. Consequently, these acts and behaviors have been defined by judicial decisions, which will vary depending on the specific circumstances of each case. For example, the Supreme Court of Appeal has accepted that the mere fact that an employee is a member of a trade union does not indicate that the termination is based on a trade union reason¹. Again, the Supreme Court of Appeal accepted the termination of the employment agreement by the employer due to the withdrawal from a certain union and membership in another trade union as a termination made for trade union reasons². In a dispute in which it was also alleged that the laid-off employees were dismissed due to the financial and economic crisis, the Supreme Court of Appeal accepted the fact that some some employees had been hired during the year when the crisis continued and that the hired employees were not union members was terminated for union reasons with regard to the dismissed employees³.

In the event of termination of the employment agreement, the fact that the employee is not a member of the trade union will not indicate that the termination is not based on trade union reasons⁴. Additionally, where multiple employment agreements are terminated, the mere fact that the majority of the employees whose agreements are terminated are union members will not be sufficient to establish that the terminations were made solely for trade union reasons. In such cases, if a selection is made in accordance with criteria such as the need of the workplace and the enterprise, the performance and competence of the employee, it cannot be concluded that the termination was made for trade union reasons. On the other hand, it should also be noted that all kinds of activities related to the union are covered by this provision. This guarantee⁵ also includes the employee's attendance at a union meeting outside of working hours or on the day of leave, making propaganda in favor of the union, collecting signatures, participating in trade union organizing activities and legal strikes. Nor is it obligatory for the trade union activities in which the employee participates or carries out to be related to or the work of the trade union of which the worker is a member. Likewise, the employee has the right to participate in the activities of any trade union of which (s)he is not a member. If the employee is discriminated by the employer due to such a situation, the right of union compensation may again come to the agenda.

B. INVALIDITY OF TERMINATION, REEMPLOYMENT LAWSUIT, AND UNION COMPENSATION

As it is known, in Article 18 and subsequent articles of the Labor Law, the terms of "employment security" and "reinstatement" for employees with employment security and the corresponding legal actions are defined. Accordingly, an employee with at least six months of seniority and an employment contract for an indefinite period has employment security in workplaces with thirty or more employees.In such cases, the employer must rely on a valid reason arising from the competence or conduct of the employee or from the requirements of the enterprise, workplace or business. Otherwise, the termination will be invalid and the employee will be reinstated. Likewise, in cases where the constitutionally protected right to freedom of trade union is violated, the payment of union compensation will be on the agenda. However, with the annulment decision of the Constitutional Court dated 22.10.2014 and numbered 2013/1 Basis, 2014/161 Decision, it was decided to cancel the words "except termination" in the fourth paragraph of Article 25 of the Law on Trade Unions and Collective Labor Agreements and the word "18" in the fifth paragraph.

With the annulment decision, employees in workplaces with less than thirty workers, i.e. employees with less than six months of seniority, who do not have employment security, can also benefit from the right to file a reinstatement case. In the same way, since the reference to Article 18 of the Labor Code has been canceled, it can be said that since the employee will not have to work with an employment contract of indefinite duration so as to file a reinstatement case, the employees working with a fixed-term employment contract shall also have the right to be reinstated in case of termination for trade union reasons. On the other hand, a distinction is compulsory condition that must be made here. Accordingly, when the employee has employment security in the reinstatement case filed on the basis of trade union reasons, if it cannot be determined that the termination was made for trade union reasons, the labour court shall examine whether the termination is valid or not. If there are no valid or justified reasons for the termination made by the employer, in this case, the reinstatement and the compensation for not starting work as much not less than 4-months of wage and annexes and in addition, up to 4 months' wage for idle time will be decreed⁶. In this case, the attorney's fee will also not be awarded in favor of the respondent employer due to the denied union compensation⁷. On the other hand, if trade union compensation is decided, according to the fifth paragraph of Article 25 of the Law on Trade Unions and Collective Labor Agreements, non-employment compensation, which can also be ruled between four and eight months, shall not be ruled.⁸

On the other hand, if the plaintiff employee is not covered by employment security, the court will examine whether the termination was solely due to trade union reasons, and if it cannot be determined, the case will be dismissed.While reinstatement is subject to the conditions outlined above, it must be said that it is always possible for the employee to file with a claim for union compensation at any time, taking the issue of statute of limitations into consideration⁹. Because, in the fifth paragraph of Article 25 of the Law on Trade Unions and Collective Labor Agreements, it is stipulated that if trade union compensation is decreed, it is insignificant whether the employee is employed or not. Accordingly, the employee is not obliged to apply to the employer if the union compensation has been awarded. From this point of view, in the event that trade union compensation is awarded, it seems possible that the plaintiff claimant employee may initiate proceedings by way of legal execution whether or not there is a demand for reinstatement¹⁰. In the same way, the employee has the right to claim severance and notice pay and other labor receivables as well as union compensation with the same lawsuit if the conditions are fully met¹¹. On the other hand, union compensation must be paid even if the employee is reinstated¹². In addition, if the employees who have employment security have requested it in accordance with the demand loyalty rule, in addition to union compensation, wages and other rights for idle time should also be decreed¹³. However, it should not be forgotten that in this case, the employee must apply to the employer within 10 working days from the notification of the finalization of the decision.

It is important to note that the union-based reinstatement case, which can also be filed by those who do not have employment security. This case issubject to compulsory mediation according to Article 3 of the Labor Courts Law No. 7036 (In Turkish), and that the mediation process must be operated according to Article 20 of the Labor Law, within 1 month from the notification of the termination notice before filing a case, and that it is a condition of the case to open a reinstatement case within 2 weeks from the last session of the mediation meeting, in case of disagreement. It is also important that cases related to union compensation claims that do not have a demand for reinstatement be also subject to compulsory mediation.

Finally, although Additional Article 3 of the Labor Courts Law No. 7036 states that some labor receivables will be subject to the 5-year statute of limitations, since there is no specific regulation in terms of union compensation, it can be said that this compensation is subject to the 10-year general statute of limitations.

C. AMOUNT AND DETERMINATION OF INDUSTRIAL COMPENSATION

According to the fourth paragraph of Article 25 of the Law on Trade Unions and Collective Labor Agreements, the amount of union compensation shall not be less than 1 year's wage of the employee. Union compensation is based on the last wage received by the employee if the employment contract has not been terminated, However, if the employment contract has been terminated, the compensation shall be calculated on the basis of the last wage on the date of actual termination¹⁴.

Even though the union compensation cannot be less than the amount of 1 year's wages of the employee, the Supreme Court of Appeal points out that if the employee's claim is for an amount lower than the minimum, the compensation should still be awarded in the amount requested by the employee, in accordance with the "principle of adherence to the demand"¹⁵. On the other hand, the doctrine rightly expresses that while there is a mandatory provision of the law, the court should not be able to award less than the mandatory price written in the law¹⁶.

While in a decision of Court of Appeal for the 7th Circuit¹⁷, the former Law Department which was closed down, it is stated that union compensation in the amount of 1 year and 1 month gross wage should be awarded for the employee who has a seniority between 5 years and 15 years, in a later decision of Court of Appeal for the 9th Circuit¹⁸, which is still on duty, it is verdicted that a compensation in the amount of 1 year gross wage is awarded for an employee with 6 years of seniority. The doctrine rightly puts forward that the union compensation should be determined according to the nature of the concrete case, the gravity of the employer's conduct, the form of termination and the seniority of the employee¹⁹.

Union compensation is calculated on the basis of the employee's bare gross wage²⁰. For this reason, it is not possible to take into account the wage annexes such as premiums, bonuses, road and food allowances in the calculation of this compensation. It is also necessary to make stamp duty and income tax deductions in the calculation of the compensation. Since union compensation is a lump sum indemnity, no damage has to arise or be proven²¹. However, compensation for excessive damages that cannot be covered by union compensation is possible to be demanded if it is proved within the framework of the general provisions.

"The provisions of the collective bargaining agreement and the employment agreement that contradict the above provisions are invalid." according to the eighth paragraph of the Law on Trade Unions and Collective Labor Agreements. Accordingly, it will not be possible for the parties to make changes in the procedures and principles set forth in Article 25 of the Law and the amount of trade union compensation by inserting provisions into the labour agreement or collective labour agreements. However, depending on the specifics of the concrete case, it is possible for the court to determine a compensation of more than the amount of one year's wages of the employee²².

Since the termination for union reasons is a special aspect of malicious termination, no additional compensation for bad faith in termination can be claimed²³, and likewise, discrimination compensation cannot be claimed for the same reason²⁴.

According to the decisions of the Supreme Court, union compensation must be charged statutory interest from the date of filing the lawsuit, unless the employer has previously defaulted²⁵. On the other hand, in my humble opinion, considering that union discrimination is ultimately a tort and constitutes a special aspect of it, it would be more accurate to conduct interest from the date when it is learned that the act of discrimination has been committed and this act of discrimination is exposed.

D. THE BURDEN OF PROOF

According to the sixth paragraph of the Law on Trade Unions and Collective Labor Agreements, "In the case to be filed with the claim that the employment contract was terminated for union reasons, the obligation to prove the reason for the termination belongs to the employer. The employee who claims that the termination was not based on the reason put forward by the employer is obliged to prove that the termination was based on a trade union reason."

According to the seventh paragraph of the same Law "Apart from termination, the employee is obliged to prove the allegation that the employer has engaged in union discrimination towards the employee. However, when the employee presents a strong indication of union discrimination, then the employer is obliged to prove the reason for his conduct."

As understood from the relevant articles, the burden of proof falls on the employee to demonstrate any claim of union discrimination by the employer,except in cases of termination of the employment contract. This obligation extends throughout the recruitment and employment relationship. On the other hand, if the employee is able to present a strong indication of union discrimination, the burden of proof is shifted and the employer shall be obliged to prove that the conduct in question was not based on union motives. If the allegation of union discrimination is made at the time of employment contract termination, that is, in cases of termination, the burden of proof will be directly on the employer in the cases to be filed for this reason and the employer shall be obliged to prove that the termination was based on another valid or just cause if the employee has employment security. If the employee does not have employment security, the employer shall be obliged to prove that the termination is not based on a union reason, otherwise the employer may face the sanctions listed above. In cases where termination is alleged to have been based on a union basis, the rules of proof shall apply regardless of whether the employee has employment security or not. Although the burden of proof in such cases is on the employer, the employee will also be able to rely on evidence proving the union discrimination in order to prove the termination for union reasons²⁶.

CONCLUSION

In conclusion, in order to ensure the freedom and security of unions that employees have on a constitutional basis, there are many legal regulations, especially the Law on Trade Unions and Collective Labour Agreements. Union discrimination is prohibited, which is a special manifestation of the prohibition of discrimination in the recruitment, employment and termination of employment relations of employees. Accordingly, employers are prohibited from making any distinctions related to union membership or activity, including but not limited to hiring, employment, dismissal, and participation in lawful union activities. Discrimination based on membership in a specific union, any union, or no union is also strictly prohibited. If such a distinction is made, the right of the employee to apply for legal remedies providing compensation and reinstatement is regulated. In the initial version of the Law on Trade Unions and Collective Labour Agreements, this protection was only for employees whose employment relationship continued and discrimination in the recruitment process and who had only employment security in the case of termination. With the decision of the Constitutional Court dated 22/10/2014 and numbered 2013/1 Base, 2014/161 Decision, it was correctly ensured that the words "except termination" in the fourth paragraph of Article 25 of the Law on Trade Unions and Collective Labour Agreements and the words "18" in the fifth paragraph were canceled and thus, both the right to claim union compensation in case of termination and the right to demand reinstatement in terms of employees who do not have employment security have been paved the way and legal opportunities have been provided.

The most important sanction of the prohibition of union discrimination, which constitutes a special aspect of the prohibition of discrimination, is union compensation. The employee who is subjected to union discrimination has the right to claim union compensation to be calculated not less than one year's gross wage. Union compensation is calculated on the basis of the bare wage and is calculated with tax deductions. It is also not important that the employee left the job in order to be awarded this compensation. In other words, the employee will be able to claim union compensation by claiming that (s)he has been discriminated as union while working at the workplace and while the employment is continuing. In the same way, in cases where the employee's employment contract has been terminated, the employee also has the right to claim reinstatement in addition to union compensation in the union compensation case filed with the claim that the termination was made for union reasons. In this case, in the event that union compensation is awarded in favor of the employee, it will not be important for the employee to apply for reinstatement or to be started to work for union compensation.

Since union compensation is a special aspect of the prohibition of discrimination, no non-employment compensation, non-discrimination compensation or compensation for bad faith can be claimed in addition to union compensation.

The employee who claims to have been subjected to union discrimination during recruitment and during the continuation of the employment relationship must prove the fact of discrimination in question. On the contrary, if the employee puts the act of discrimination forward with strong evidence, the burden of proof will be shifted and the employer will have to prove that the employee has not been subjected to union discrimination. On the other hand, if the employee claims to have been subjected to union discrimination during the termination of the employment contract, the employer will have to prove the reason for the termination. In this case, if the employer claims that the termination was made for another reason, the burden of proof will be shifted again and the employee will have to prove that the termination was made for a union reason.

¹Court of Appeal for the 9th Circuit 17.09.2007 D., 2007/30166 B., 2007/26744 D.

²Court of Appeal for the 9th Circuit 10.09.1987 D., 1987/7705 D.

³Supreme Court Assembly of Civil Chambers 07.10.2009 D., 2009/373 B., 2009/417 D.

⁴Sarper Süzek, Labour Law, 16th Addition, Beta Publishing, Istanbul, 2018, pg.644.

⁵Süzek, Labour Law, pg.644.

⁶Court of Appeal for the 22nd Circuit 16.05.2013 D., 2013/8347 B., 2013/11127 D.

⁷Court of Appeal for the 22nd Circuit 05.09.2013 D., 2013/21497 B., 2013/18156 D.; Court of Appeal for the 9th Circuit 20.05.2015 D., 2015/13536 B., 2015/18211 D.

⁸Court of Appeal for the 22nd Circuit 04.10.2016 D., 2016/18178 B., 2016/225445 D.; Süzek, Labour Law, pg.648.

⁹Süzek, Labour Law, pg.645.

¹⁰Süzek, Labour Law, pg.647.; Hamdi Mollamahmutoğlu/Muhittin Astarlı/Ulaş Baysal, Labour Law, 6th Edition, Turhan Publishing, Ankara, 2014, pg.1083.

¹¹Süzek, Labour Law, pg.648.

¹²Süzek, Labour Law, pg.645.

¹³Court of Appeal for the 9th Circuit 19.11.2018 D., 2018/9424 B., 2018/20877 D.

¹⁴Court of Appeal for the 9th Circuit 24.04.2019 D., 2018/8162 B., 2019/9549 D.

¹⁵Court of Appeal for the 22nd Circuit 19.01.2015 D., 2015/241 B., 2015/9 D., Court of Appeal for the 9th Circuit 29.07.2004 D., 2004/5523 B., 2004/19994 D.

¹⁶Süzek, Labour Law, pg.646.

¹⁷Court of Appeal for the 7th Circuit 25.03.2015 D., 2015/9209 B., 2015/5525 D.

¹⁸Court of Appeal for the 9th Circuit 04.10.2018 D., 2018/5445 B., 2018/17529 D.

¹⁹Süzek, Labour Law, pg.647.

²⁰Court of Appeal for the 9th Circuit 13.01.2015 D., 2015/37541 B., 2015/327 D.

²¹Süzek, Labour Law, pg.646.

²²Süzek, Labour Law, pg.648.

²³Court of Appeal for the 9th Circuit 12.04.2011 D., 2011/17360 B., 2011/10837 D.

²⁴Supreme Court Assembly of Civil Chambers 22.02.2017 D., 2015/305 B., 2017/323 D., Süzek, Labour Law, pg.648.

²⁵Court of Appeal for the 9th Circuit 31.03.2004 D., 2003/18398 B., 2004/6634 D., Court of Appeal for the 9th Circuit 25.01.2000 D., 1999/18244 B., 2000/379 D.

²⁶Süzek, Labour Law, pg.649 - 650.

BIBLIOGRAPHY

Hamdi Mollamahmutoğlu/Muhittin Astarlı/Ulaş Baysal, Labour Law, 6th Edition, Turhan Publishing, Ankara, 2014.

Sarper Süzek, Labour Law, 16th Addition, Beta Publishing, Istanbul, 2018.

www.corpus.com.tr (In Turkish)

www.karararama.yargitay.gov.tr (In Turkish)

www.kazanci.com.tr (In Turkish)