Reinstatement Claims: The Employer’s Exposure and Burden of Proof

The rule that gives Turkish employers the most difficulty is a single sentence: it is for the employer to prove that the termination rested on a valid reason. That sentence moves the centre of the dispute away from whether the dismissal was justified and towards whether the road to it was documented.

Who can bring a claim

Three conditions must hold together:

• The workplace employs thirty or more employees,
• The employee has at least six months' service,
• The contract is of indefinite duration.

In counting to thirty, employees at the employer's other workplaces in the same line of business are included. A branch that looks small on its own may therefore still fall within job security — the point employers most often get wrong.

Valid grounds and formalities

Where the conditions are met, the employer must base the dismissal on a valid reason arising from the employee's capability or conduct, or from the operational requirements of the business.

The formalities matter as much as the grounds:

• Notice of termination must be in writing.
• The reason must be stated clearly and precisely. A general phrase such as "underperformance" is not enough on its own.
• Where the dismissal rests on conduct or performance, the employee must as a rule be given the opportunity to respond first.

A dismissal carried out without that step can be invalid on procedural grounds even where the underlying reason was sound.

Undocumented reasons count for nothing

Because the burden lies with the employer, a reason that cannot be put in the file has no value. Three situations cause the most difficulty:

1. Verbal warnings. An employee warned verbally for years is, as far as the file is concerned, an employee never warned at all.
2. Unmeasured performance expectations. Without a concrete target, communicated in advance and capable of measurement, an allegation of underperformance has nothing to rest on.
3. Unrecorded incidents. Witness evidence does not substitute for a record made on the day.

The discipline required is straightforward: warnings written, dated and served; performance assessed against criteria announced in advance; incidents recorded when they happen.

Mediation and deadlines

A reinstatement claim cannot be filed directly. The employee must apply to a mediator within one month of being served with notice. Failing agreement, the claim must be filed within two weeks of the final mediation record. Both periods are preclusive.

For an employer, mediation is not a formality. Where the file is weak on documentation, settling there produces a more predictable outcome than the uncertainty of the claim and the cost of a longer process.

What an invalid dismissal costs

If the court finds the dismissal invalid, the employee may apply to return to work within ten working days of the decision becoming final. If the employer does not reinstate them within one month:

• Compensation for non-reinstatement: between four and eight months' wages,
• Wages for the intervening period: up to four months' accrued wages and other entitlements.

Together, a single invalid dismissal can approach twelve months' wages. Severance and notice pay are separate again.

Checklist before dismissing

• Is the workplace above the thirty-employee threshold, counting other workplaces in the same line of business?
• Does the employee have six months' service?
• Is the reason stated in writing, clearly and precisely?
• Where conduct or performance is in issue, has a written statement been taken?
• Have steps showing dismissal was a last resort been taken and recorded?
• Was redeployment to another role considered?

Conclusion

The outcome of a reinstatement claim is usually determined not in the hearing room but in records kept months before the dismissal. In a business with that discipline, dismissal is a predictable step; in one without it, every dismissal is an open risk.