Constitutional Court rules in favor of employee fired 2 days before meeting seniority requirement

The Constitutional Court (AYM) has ruled that the right to a reasoned decision, within the scope of the right to a fair trial, was violated in the individual application of Gülşah K., whose reinstatement lawsuit was rejected by the appellate court on the grounds that she did not meet the 6-month seniority requirement.

According to the decision published in the Official Gazette, Gülşah K., who began working as an investment specialist at a bank on March 15, 2021, was dismissed on September 13, 2021, on the grounds of "insufficient performance." The termination notice was served to the employee, who was on medical leave due to COVID-19 between September 5 and 18, 2021, on September 18.

In the reinstatement lawsuit she filed at the Istanbul 11th Labor Court, Gülşah K. argued that she met the 6-month seniority requirement when considering the date the termination notice was served. Stating that she was appreciated by her managers during her tenure, the applicant claimed that the termination based on insufficient performance was unfair and unlawful.

The defendant bank, on the other hand, argued that the employment contract was terminated for just cause on September 13, 2021, and that the 6-month seniority requirement for a reinstatement lawsuit had not been met.

The local court ruled for the reinstatement of Gülşah K. The decision stated that the employment contract was terminated 2 days before the 6-month seniority mark, but because the applicant was on medical leave, the notice was served on September 18, and therefore she should benefit from job security provisions. The court also assessed that the procedure was not carried out in accordance with its form and conditions because no defense was taken prior to the termination.

Upon the appeal, the 31st Civil Chamber of the Istanbul Regional Court of Justice reviewed the file and decided to reject the case with finality, accepting the employee's seniority as 5 months and 28 days.

Reviewing the individual application, the Constitutional Court stated that the local court had justified that the 6-month seniority requirement was met based on the medical report and the date the termination notice was received, whereas the appellate court did not provide sufficient reasoning as to why it rejected the case.

The High Court decided to send the file to the 31st Civil Chamber of the Istanbul Regional Court of Justice for a retrial to remedy the consequences of the violation.