A. General Framework
The concept of reemployment is one of the most important issues of Labor Law and working life for Turkey. Reemployment, whose purpose is to alleviate the consequences of the termination of the employment contract for the employee, actually serves to protect the employee, who is the weak side of the employment contract. Therefore, the employer’s right to terminate is limited in this way. However, in order to request reemployment by a employee, that employee must be covered by job security. For this reason, it is necessary to fulfill the job security conditions regulated in Article 18 and the following of the Labor Law. These conditions are; 30 or more employees are employed in the workplace, the employee has at least 6 months of seniority, not being an employer representative, the employment contract is indefinite and terminated by the employer and the employee is within the scope of the Labor Law and the Press Labor Law. If these conditions are met, an employee whose employment contract is terminated will have the opportunity to file a lawsuit against his/her employer with a request for reemployment.
B. The Case of Reemployment and Consequences
Reemployment lawsuit is a way of reemployment as a result of the employer’s claim that there is no valid reason for termination by the employee whose employment contract is terminated. The reemployment lawsuit has a bilateral effect and this lawsuit has consequences for both the employee and the employer.
First of all, as a result of the trial to be made with the reemployment lawsuit, it can be concluded that the employee’s employment contract has been terminated for just cause. In this case, the employee’s request for reemployment will be rejected, and the employer will not be obliged to start to work of the employee or pay the idle time wage, and also the obligation to pay severance and/or notice indemnity. Another situation is when it is concluded that the employee’s employment contract is valid termination. In this case, again, the employer will not be obliged to start to work of the employee or pay the idle time wage, but the employer will also have to pay notice pay if the employee has not been given severance pay and/or notice period, provided that he has worked for more than one year.
If, as a result of the Court’s proceedings, it is concluded that the employee’s employment contract has been terminated for an invalid reason, the employee’s request to return to work will be accepted and it will be decided to pay wages and other rights for up to four months of idle time until the date of finalization of the decision, and the employer will pay job security compensation if the employer does not initiate the employee to start work. In addition, if notice and/or severance pay has been paid to the employee at the termination of the employment contract, the Court may decide to deduct these receivables from the idle time fee in case the employer is started to work.
C. Finalization of the Reemployment Decision and the Employer’s SSI Obligations
We have mentioned that with the finalization of the decision made as a result of the trial held within the scope of the reemployment lawsuit, the bilateral rights and obligations of the employee and the employer against each other have emerged. With the finalization of the decision, not only these rights and obligations of the employee and the employer towards each other arise, but also some obligations of the employer towards the Social Security Institution.
If the Court does not accept the employee’s request to return to work, if obligations such as a notice of dismissal have been fulfilled by the Employer against the Social Security Institution during the period when the employee’s employment contract was terminated, there is no obligation to reappear as of the finalization of the decision.
If the employee’s request to return to work has been accepted by the Court and the employee has been hired by the employer renewedly, if a notification of dismissal has been made about the employee in advance, a notification of entry into work must be made to the SSI immediately. Subsequently, while the wage and other rights of the employee who is started to work are accrued, insurance premium, unemployment insurance premium, income tax and stamp tax must be deducted, taxes must be paid to the tax office and insurance premiums must be paid to the SSI. Again, since the four-month idle period of the employee is a period that should be added to the total term of office, the insurance premium and the unemployment insurance premium for this period should also be accrued and notified to the Social Security Institution by the employer and the premiums should be paid to the Social Security Institution.
Failure of the employer to notify on this matter within the legal period and not paying the premiums will make the employer liable to SSI, and an administrative fine may be imposed on employers who do not carry out these actions.
In the Regulation on Social Insurance Transactions, there are regulations regarding the period of submission of the documents regarding the premiums of the employees who are started or not started to work as a result of reemployment lawsuits, and the payment period. In the event that the employee whose reemployment is decided upon with the finalized reemployment decision, applies to the employer to start work within ten working days from the notification of the decision and the employer starts the work duly, the period of submission of monthly premium and service documents for the four-month period will expire on the 26th of the month following the date of notification of the employer’s invitation letter to the insured. If the employer does not initiate the employee to start work, the period will end on the 26th of the month following the month in which the notification of the insured employee’s application to the employer to start work is received. The payment period of the premiums will expire at the end of the month following the date of notification of the employer’s invitation letter to the insured.
D. Conclusion
As a result, the finalization of the reemployment decision brings with it some obligations both arising from the relationship between the employee and the employer and the relationship between the employer and the Social Security Institution. Although it will be mentioned that an obligation will not arise by the employer if the employee’s reemployment request is rejected by the Court and provided that the employer has duly discharged his/her employment, in case the employee’s reemployment request is accepted by the Court, a notification of employment to the SSI is made, obligations arise such as paying taxes and premiums that arise during the accrual of wages and other rights, accruing insurance premiums and unemployment insurance premiums and reporting them to SSI, and paying the premiums to be paid in due time. The fulfillment of these obligations is of great importance both in terms of ensuring social security and in preventing future disputes between the employee, employer and SSI.
Harun Demir
