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A STEP FORWARD IN TURKISH LAW'S HARMONISATION WITH THE EU LAW: AN ISTANBUL COURT PRECEDENT OF 2007 UNDER THE NEW EMPLOYEE DISMISSAL REGIME Claims lodged by Berna Tepe Encouraged to take legislative steps to harmonise its law with the European Union law, the Turkish State has introduced major changes into its labor law, predominantly by the 2003 Labor Act. One such radical step was to erase the discretionnary dismissal in the private sector of those individuals recruited whether as executive or otherwise. However, the new 2003 Labor Act is selective on the type of workplaces where dismissal cannot be discretionary: only those employers at whose workplace a minimum number of 30 individuals work (the “number-of-workers-limit”) must hold, thus give an acceptable reason for dismissal, such reason directly concerning the competence or conduct of the individual if the dismissal is not due to the needs of the enterprise, the workplace or the employer's business. At a litigation case where Ms Berna Tepe represented in 2006 a dismissed executive manager against a group company of a recently privatized holding company in İstanbul where the holding company held 26 staff, Ms Tepe asserted that the number-of-workers-limit could not be interpreted in a rigidly formal manner as to encourage – as the case was to prove in this specific case - the employer to circumvent the restrictions against unfounded dismissals. After overcoming the number-of-employees-limit as a precondition for such cases to be heard, the evidence submitted to the İstanbul Labor Court relied on both written proofs including documentation on the employer company's conduct after privatisation as well as witnesses and went ahead despite the fact that many favorable documents were under the possession of the employer. Throughout the court process and upon challenges by the defendant represented by its internal counsel, the court tested the reliability of the plaintiff's testimonies and compared the testimonies of the parties' witnesses on various matters. If luck played any role in the high amount of compensation finally awarded by the court, it played its part in the defendant's witnesses giving ambigious testimonies questionned – through the judge- by Ms Tepe; it was then presented to the court that the underpinnings of the defendant's evidence were actually proving the claims. In 2007, when the Court of Cassation approved the final decision of the first instance İstanbul Labor Court, it became clear that the judgment is a precedent on the said major issue concerning the relatively new dismissal regime. The defendant persevered in not recruiting the dismissed executive back, while – at the same time- resisting to pay the damages after the judgement leaving no choice but an application to the judiciary coercion mecanism. As it is with many precedents of the justice, when the specific conditions of the case are met, the judgment is – as the İstanbul (Bakırköy) Labor Court judge stated- a leading one to resolve conflicts due to similar dismissals.
Berna Tepe, Managing attorney - Tepe Counselling/Litigation Practice « back |
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