Introduction
Provisions on job security are regulated under Articles 18–21 of the Labor Law No. 4857, allowing employees to request reinstatement if their employment contract is terminated by the employer without justifiable or valid cause. The implementation of a reinstatement decision following a successful reinstatement lawsuit entails multiple legal and practical obligations for both the employee and the employer. In this process, the strategy adopted by the employer is of critical importance in terms of legal responsibilities and potential risks.
From the moment the reinstatement decision becomes final, the employee must notify the employer of their intention to resume work within ten days. Upon receipt of this notification, the employer has one month to either reinstate the employee or pay the compensation awarded by the court.
Characteristics Required in the Reinstatement Invitation in Light of Current Supreme Court Decisions
- Addressee of the Reinstatement Invitation
The reinstatement invitation must be directed personally to the employee. According to Supreme Court precedents, a notice addressed both to the employee and their representative is legally valid. However, a reinstatement invitation sent solely to the representative is not considered legally valid.
- Delays in Notification and the Principle of Good Faith
The Supreme Court holds that the employer should not be held liable for delays arising from postal or notarial processes. Nevertheless, such delays must be assessed within the framework of the principle of good faith. When considering that the invitation will be sent via a notary, leaving the process to the final days may be interpreted as a lack of sincerity in the invitation in case of a dispute.
- Clarity of Position, Date, and Terms in the Invitation
If the employer is unable to reinstate the employee to their previous position, the invitation must propose employment in an equivalent role. The invitation must clearly specify the position, the commencement date, and the working conditions.
- Updating Salary and Benefits in Line with Comparable Positions
The employee’s salary and other benefits must not be reduced relative to previous terms. The reinstatement offer should consider the prevailing salary for a comparable employee at the date of reinstatement. The benefits of the reinstated position should be assessed not only in terms of base salary but also additional benefits, and all rights must be updated based on the applicable standards at the time of reinstatement (Supreme Court 9th Civil Chamber, 2019/17193 E., 2019/10304 K.). Simply stating “same employment rights” is insufficient and may be interpreted as insincere. Therefore, the invitation must concretely reflect updated terms and benefits aligned with comparable positions.
- Non-Conditional Nature of the Reinstatement Invitation
The employer’s invitation to reinstate must not be subject to conditions. As emphasized by the Supreme Court 9th Civil Chamber in case no. 2016/7527 E., 2019/17412 K., conditioning reinstatement on the provision of documents or signing of agreements demonstrates insincerity in the employer’s intent to reinstate, rendering the invitation legally invalid. In such cases, the court has ruled that the employer must pay non-reinstatement compensation, and the employee’s seniority compensation should be calculated by including the four-month period of inactivity.
- Substantial Changes and the Nature of the Reinstatement Invitation
According to the Supreme Court 9th Civil Chamber, case no. 2022/15482 E., 2023/99 K., the employer must initially reinstate the employee to their former workplace and under previous conditions. If this is not feasible, a new position may be offered without creating substantial changes. If even this is not possible, a written proposal for change must be made in accordance with Article 22 of Labor Law No. 4857. If a substantial change occurs and the employee refuses the proposal, the employer’s modification will be deemed valid. In this scenario, the employee will not receive non-reinstatement compensation, but seniority, notice, and up to four months of idle-period wages must still be paid.
Obligations To Notify The Social Security Institution (SGK)
In reinstatement procedures, the following documents—“the local court decision regarding the employee’s reinstatement lawsuit, the finality annotation, the notification of the reasoned judgment to the parties, the warning submitted by the plaintiff for reinstatement, the monthly premium service certificate covering the 120-day idle period, and documents confirming payment of wages and compensation claims to the employee”—must be sent to the relevant Social Security Institution (SGK) via e-insurance or submitted in paper form by the 26th day of the month following the month in which the notice of the employee’s application to the employer to resume work is received.
Documents to Be Prepared in Practice
During the actual reinstatement of the employee in line with the court decision, the preparation of the following documents is recommended:
i. Documents to be Prepared by the Employer:
- Reinstatement notice (to be delivered via notary or against signature)
- Employment contract, if required, to be revised
- SGK employment entry notification
- Updated personnel file (ID, diploma, health report, etc.)
- Payment documents for idle-period wages
ii. Documents That May Be Requested from the Employee:
- Copy of ID, photograph, residence certificate, criminal record
- Diploma, health report
- Occupational safety training certificates, signature of the new contract (if required)
What Happens if the Reinstatement Invitation Is Not Considered Sincere?
If the employer’s reinstatement invitation sent via notary is deemed insincere by the employee, and the employee responds indicating that they will not resume work on that basis, there are multiple procedural pathways that can be followed in accordance with a formal notice responding to the employee’s declaration. These pathways outline how the process may be conducted moving forward.
1. Payment of Seniority and Notice Compensation While Withholding Non-Reinstatement Compensation and Idle-Period Wages
In the reinstatement process, both the employer’s invitation and the employee’s application must be sincere. If there is a belief that the employer’s invitation is not sincere, the employer will be obliged to pay non-reinstatement compensation and wages for the idle period. Conversely, if it is established that the employee’s application was insincere, any compensation and wages awarded in their favor through the reinstatement lawsuit will not be paid.
However, since the termination becomes valid at this point, the employee’s accrued seniority and notice compensation must be calculated and paid separately to their bank account with detailed explanations. In this approach, a record must be prepared documenting the date on which the employee did not commence work.
It should be noted that if the reinstatement invitation is deemed insincere, there is a high likelihood that the employee will file a new lawsuit claiming compensation and wages. Given the current high-interest rates, any new litigation may result in significant interest costs accruing close to the principal amount.
2. Payment of All Amounts in Accordance with the Court Decision and Closure of the Process by Protocol
In line with the court decision, the process may be closed amicably by paying the wages for the four-month idle period, the four-month non-reinstatement compensation, as well as termination-related claims such as seniority and notice compensation. In this approach, special attention must be paid to the accurate calculation of termination-related claims.
If the employee is not reinstated, the employment contract is considered as never having been terminated, and the contract is deemed to have ended either on the date the employee was supposed to resume work or one month thereafter. Accordingly, non-reinstatement compensation is calculated based on the employee’s wage at the time they were not reinstated. Additionally, the four-month period considered as worked is added to the employee’s total service period, and seniority, notice compensation, and annual leave wages are calculated based on the current wage. The calculation should be based on the salary of a comparable employee at the workplace; if no such employee exists, a wage survey must be conducted.
Any errors or omissions in these calculations may lead the opposing party to refuse the settlement protocol. In such cases, payments can still be made to the bank account with separate explanations for each item, but the risk of litigation due to alleged calculation errors remains.
3. Monitoring the Process Without Making Any Payment
If the employee notifies the employer that they consider the reinstatement invitation insincere, the employer may evaluate that the invitation was made in accordance with the law and the principle of good faith, yet the employee did not resume work of their own free will. In this scenario, it is possible to proceed without making any payment.
Although there is a final court decision, the primary purpose of reinstatement lawsuits is the actual reinstatement of the employee; therefore, such claims cannot be directly subject to enforcement proceedings. The employer must demonstrate that the reinstatement invitation was sincere and genuine and that all formal notices were issued correctly in both form and content.
If a new lawsuit is filed, the court will examine whether the notices prepared by the employer and employee were procedurally proper. Should the court determine that the employer’s invitation lacked sincerity and did not reflect a genuine intent to reinstate the employee, the employer may be obliged to pay non-reinstatement compensation equivalent to at least four months and at most eight months of wages, along with wages for the idle period of up to four months and other statutory rights.
Employee Behavior After Reinstatement And The Employer’s Right To Terminate Again
In practice, some employees who are reinstated may exploit the process, engaging in behaviors that disrupt workplace order or place the employer in a difficult position. The likelihood of such behavior increases, particularly when the reinstatement decision is made due to insufficient evidence on the employer’s part regarding the original grounds for termination. In such cases, the employer retains the right to lawfully initiate a new termination based on objective and legally valid grounds, even after the employee has been reinstated. Supreme Court precedents support this approach: it is possible for an employer to terminate an employee post-reinstatement due to the employee’s conduct and behavior; however, this new termination must be independent of the reasons that invalidated the prior termination and must be demonstrably provable by the employer.
Conversely, an employer’s attempt to force a reinstated employee to resign—by not assigning tasks, excluding them from work, or otherwise preventing actual performance—would be unlawful. Such practices are considered “mobbing” or “malicious practices” under Supreme Court rulings, potentially giving the employee the right to claim moral damages in addition to non-reinstatement compensation.
Therefore, the approach toward a reinstated employee must be determined entirely based on the specific circumstances of the case. A delicate balance must be maintained between the employer’s right to preserve workplace order and the employee’s right to reinstatement protected by judicial decision.
Conclusion
The course of action an employer chooses following a reinstatement decision is of critical importance in terms of both legal responsibilities and potential risks. Every step in this process should be transparent, documented in writing, and verifiable, to prevent future disputes. The employer’s reinstatement invitation must reflect a sincere and genuine intent to reinstate the employee, and all working conditions—including position, salary, and benefits—must be clearly stated to avoid ambiguity. Otherwise, the invitation may be deemed invalid, and the employer may be obliged to pay compensation.
If the employee refuses to resume work on the grounds that the invitation is not sincere, the employer’s strategy becomes crucial. Possible approaches include paying only seniority and notice compensation, settling all entitlements through a formal protocol, or allowing the process to proceed under judicial review without making any payments. Each of these alternatives carries different levels of litigation, interest, and payment risk, which must be carefully considered by the employer.