Employer Representative’s Status With Regard to Job Security Provisions of the Labor Code
An employer representative (in Turkish “İşveren Vekili”) is an authorized individual entrusted in the management of the workplace (in Turkish, “işyeri”) and the enterprise (in Turkish, “işletme”).
Article 2 of the Labor Code Numbered 4857 (the “Code”) titled “Definitions” defines employer representative as “any person who acts on behalf of the employer and takes part in the management of the business, workplace and enterprise.” As per the same article of the Code, the employer is directly responsible for the operations and liabilities of the employer’s representative against the employees. All obligations and responsibilities of the employer under the Code, also bind the employer’s representative.
Article 2 of the Code also defines a workplace as “a unit wherein the employees, the materials and non-material elements are organized by the employer to produce goods or services”. For instance, the stores of the brands may be qualified as a workplace.
There is still not yet a single definition of an enterprise and this issue of what qualifies an enterprise is generally considered by the courts on the specifics of each separate case. Nevertheless, as per the definition of Law on Trade Unions and Collective Agreements (in Turkish, “Sendikalar ve Toplu İş Sözleşmesi Kanunu”), an enterprise is “the workplace operating in the same business line belonging to the real or legal persons or public institutions or organizations”. Though it is difficult to give an example as this definition may vary in each instance, it could be stated that companies with branches and factories producing goods and services could be qualified as an enterprise according to this definition.
Article 18 of the Code foresees the principle of job security (in Turkish, “iş güvencesi”) and states that “the employer who terminated the employment contract of an employee engaged for an indefinite period who is employed in a workplace with 30 (thirty) or more employees and who meets a minimum seniority of 6 (six) months must depend on a valid reason (in Turkish, “geçerli nedenle fesih”) for such termination connected with the capacity or conduct of the employee or based on the operational requirements of the workplace, enterprise or service”.
Besides, as per the above-mentioned Article 18, for an employee to benefit from the provisions of job security, the employee should not be in the position of an employer’s representative or his/her assistant who manages the entire enterprise (in Turkish “İşletmenin Bütünü”) or the employer’s representative who manages the entire workplace (in Turkish “İşyerinin Bütünü”) and has the authority to employ and dismiss the employee/s.
In other words, the provisions of job security shall not apply:
- to employer representatives and his/ her assistants who manage the entire business, or
- to employer representatives who manage and control the entire workplace and who have the authority to hire and dismiss employees.
The 9th Civil Chamber of Court of Cassation draws attention to the distinction between the management of the entire enterprise and management and control of the entire workplace in its decision dated 10 October 2016 under the file number 2015/33962 and decision number 2016/17615.
In this context, the decision states that first group of employer representatives who cannot benefit from job security are the employer representatives and their assistants who manage the entire enterprise with the authority to represent. Therefore, only the titles are not sufficient to conclude that an employer representative cannot benefit from job security. What is also important is to determine whether the individual has been given the authority to represent the Company as per the circular of signatures/ delegation of authorities’ certificate (in Turkish, “imza sirküleri”) and whether he/she manages the entire enterprise.
The second group of employer representatives who cannot benefit from job security are those who manage not the entire business, but the entire workplace and have the authority to hire and dismiss employees.
In this respect, there are two different groups of employees who are excluded from the job security provisions based on different conditions:
- Group 1- Employer representatives who manage an enterprise in its entirety and their assistants
- Group 2– Employer representatives who manage a workplace in its entirety and who are also authorized to employ and dismiss employees.
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