The right to organize safeguards the association of employees and employers to protect their common economic and social interests, as well as their membership and union activity. Different treatment by the employer because of a union, dismissal, or a disciplinary penalty imposed on a public servant each call for separate legal routes. Union activity and work stoppages of every kind are not the same thing; the purpose of the action, the status of the employee and the nature of the public service are assessed in the specific case. [1–3]
This guide is for general information. The legislation and the time limits that apply to an employee and to a public servant should not be applied to one another.
The area protected by the right to organize
Article 51 of the Constitution regulates the freedom to form a union, to join it and to leave it; Articles 53 and 54 regulate the safeguards concerning the collective labor agreement and the strike. Article 11 of the European Convention on Human Rights (ECHR) likewise protects trade union freedom within the right to association. The right is not limited to the ability to register a membership; it also matters that the union can defend the interests of its members. [1; 4]
No one can be compelled to join a particular union, to leave a membership or not to become a member. Discrimination on union-related grounds in hiring, working conditions and termination is prohibited. Nevertheless, the conditions for benefiting from a collective labor agreement and the differences that the law reserves are assessed separately. Not every difference in pay is union-based discrimination. [2, Art. 25]
The distinction between employees and public servants
The basic regulations are Law No. 6356 for employees and Law No. 4688 for public servants. The regimes for establishment, membership, collective bargaining and action are not the same. An action to annul a disciplinary penalty imposed on a public servant and an employee’s claim for union compensation are heard before different courts with subject-matter jurisdiction. [2; 3]
A public servant’s work stoppage on the decision of a union cannot automatically be regarded, in every case, as either lawful or unlawful. The connection of the action with professional interests, the nature of the duty, the effect on the service and the chilling effect of the sanction are examined. In particular for vital services, a balance with the rights of others needs to be struck.
How is union-based discrimination established?
The employer’s expressly naming the union is not the only means of proof. Changes of duty that begin after the dates of membership, pressure to withdraw from membership, different treatment of employees in a similar situation, the distribution of collective dismissals and the situation of the employees hired as replacements may matter. A temporal proximity alone, however, is not sufficient evidence in every case.
Article 25 of Law No. 6356 regulates the burden of proof separately for termination and for discrimination other than termination. In termination, the employer is responsible for proving the reason it puts forward, while the employee is responsible for proving the claim that the termination rests on a union-related reason. In discrimination other than termination, once the employee shows a strong indication, the employer is required to prove the reason for its conduct. [2]
| Fact | Supporting document | Review of the opposing defense |
|---|---|---|
| Dismissal after joining the union | Dates of membership and termination | Whether the employer knew of the membership and whether the reason for termination is genuine |
| Selective change of duty | Previous duty, comparable employees | Whether the operational need is applied consistently to everyone |
| Pressure to withdraw from membership | Correspondence, witnesses, lawful recordings | The context of the statement and whether it can be attributed to the employer |
| Disciplinary penalty for union action | Union decision, participation, duty and penalty | The purpose of the action, the effect on the service and the severity of the sanction |
The employee should not obtain workplace documents by unlawful methods. The production by the court of records the employee cannot access may be requested. The personal information of other employees should be used only to the extent necessary for the dispute.
Reinstatement and union compensation
In a termination for a union-related reason, the conditions for reinstatement and for union compensation are assessed together. Under Article 25 of Law No. 6356, union compensation cannot be less than the employee’s one year of pay. However, the amount of one year of pay is not an automatic, single figure in every file; the circumstances of the violation and of the claim are examined. [2]
When a union-related termination is established, there is a special rule, concerning the entitlement to compensation, on whether the employee is put back to work or not. The rule that, because of the failure to put the employee back to work, the compensation under Article 21/1 of Law No. 4857 is not separately awarded is also taken into account. Claiming different compensations on top of one another without making any distinction may create problems of claim and calculation.
Why should the time limits be tracked separately?
For reinstatement, an application is made to a mediator within one month from the notification of the termination notice. If no agreement is reached, an action is filed before the labor court within two weeks from the date on which the final record was drawn up. Filing a reinstatement action without applying to mediation creates a procedural problem. [7, Art. 20; 8]
The time limits for bringing an action (hak düşürücü süre) for a claim for union compensation and for reinstatement are not the same. Not having resorted to the reinstatement route does not, by itself, eliminate a separate claim for union compensation under the conditions in the law. However, the statute of limitations, the legal nature of the claim and mediation as a condition precedent to litigation are assessed separately. After a reinstatement decision, the application to the employer and the time limits for being put back to work should also be tracked separately. [2; 7]
Disciplinary penalty imposed on a public servant
In a disciplinary act, the charge, the defense, the content of the union decision and the manner in which the duty was disrupted are examined together. The administration’s being content with merely finding that the person “did not report for duty” may fail to explain the effect of the union right. On the other hand, the existence of a union decision does not create an automatic excuse for all actions.
For an annulment action, a period of sixty days from written notification generally applies; special objection procedures and the effect of an application on the time limit for filing the action are calculated separately. An applicable disciplinary objection and a judicial action should not be confused with each other. If the conditions are met, a stay of execution under Article 27 of the Administrative Procedure Law (İYUK) may be requested. [9]
The Tayfun Cengiz and Kristal-İş decisions
In Tayfun Cengiz, Application No. 2013/8463, September 18, 2014, the penalty of warning given to a teacher who did not come to work, within the scope of union activity, was examined. The Constitutional Court (Anayasa Mahkemesi) found a violation of the right to organize, taking into account the chilling effect on participation in union action even though the penalty was light. The decision does not mean that all work stoppages by all public servants are permitted unconditionally. [5, §§ 58–63]
In Kristal-İş Sendikası, Application No. 2014/12166, July 2, 2015, the rejection of a request for a stay of execution against the postponement of a strike was assessed. The Constitutional Court determined that the grounds of national security and public health had not been explained in a concrete and sufficient manner and found a violation of the right to organize. The speed of judicial protection matters especially for union activity, which can lose its effect over time. [6, §§ 74–83]
What these decisions have in common is that an interference with the right cannot be assessed merely by the amount of the penalty or the name of the act. The reasoning, the context of the action and the actual effect on the exercise of the right are examined together. In a strike postponement, the authority competent at the date of the decision should be distinguished from the authority in the current legislation.
How should an application to the Constitutional Court be prepared?
The Constitutional Court is not a first-instance court that directly takes the employer’s place and issues a reinstatement decision. In the conduct of private employers, what matters is whether the State has fulfilled its obligation of judicial protection. In the ordinary legal remedies, the union-related claim, the relevant evidence and the comparisons should be put forward clearly. [10]
In the application form, the membership, the employer’s knowledge, the action or termination, the lawsuit and the legal remedies are set out in chronological order. It is shown which decisive claim the judicial decision did not assess or which disproportionate result it approved. The union’s own application and the employee’s personal application are distinguished with regard to representation and victim status.
As a rule, the application is made within thirty days from learning of the relevant final decision. Attorneys may use the UYAP Attorney Portal. The decisions, the record of learning, the documents of representation and the necessary annexes are completed. The request should establish a link between the violation, the retrial and, where there is one, the documented damage. [10; 11]
A decision finding a violation does not lead to the same pay or compensation result for all union disputes. If a retrial is held, the relevant court should carry out an assessment that removes the reason for the violation. The route to the European Court of Human Rights (Avrupa İnsan Hakları Mahkemesi) may be examined separately within the scope of domestic remedies and the four-month general time limit. [4; 10]
The article on the right to an effective remedy is complementary on the nature of judicial protection.
The debate on collective action by public servants
Kemal Efe Sayın and Canberk Gümüş discuss the Constitutional Court’s case law on the right of public servants to strike together with international trade union safeguards. The study offers an assessment showing that national personnel statuses and international protection are not the same. This debate should not be turned into the conclusion that every work stoppage is unconditionally protected. In an application, the purpose of the action, its duration, the public service performed, the union decision and the sanction imposed should be addressed together. [12]
The indicators of union-based discrimination should be assessed together
How is the reason for termination put forward by the employer examined?
The employer may put forward economic contraction, performance or discipline as a ground. A claim of a union-related reason is not strengthened merely by denying this ground. The proximity between the date of termination and the organizing process, the difference between unionized and non-unionized employees, the hiring of new workers, the distribution of terminations and the statements of managers should be examined together. A single indicator is not conclusive proof in every file; what matters is the consistency of the documents with one another and their power to explain the real reason for termination. [2, Art. 25]
Against a performance defense, previous evaluations, targets and the criteria applied to similar employees may be examined. In an economic ground, the real situation of the workplace and why the selection was directed at particular employees are discussed. Although the date of union membership is important, it does not by itself explain the whole causal relationship. Whether the employer was aware of the union activity and at what stage the adverse act arose are also investigated.
Pressures other than termination should not be overlooked
A violation of union rights is not only dismissal. A change of duty, a difference in pay or fringe benefits, coercion to leave the union and the exclusion of those who take part in union activity may also arise in a specific case. The order of proof in discrimination other than termination should not be regarded as the same as the order of proof in a union-related termination. The different provisions in Article 25 of the Law apply according to the nature of the claim. [2]
The fact that the employee is still at the workplace requires particular care when collecting evidence. Instead of personnel files obtained through unlawful access or other people’s private correspondence, the person’s own notifications, payrolls, duty letters and records that can be lawfully accessed are used. The documents that the court can have produced are specified clearly. Witnesses should show which fact they know personally; the abstract statement “they were against the union” should be supported by concrete events.
The union decision, the purpose of the action and the effect on the public service
Although relying on an action decision taken by the union is important, it does not automatically protect every act. The relationship of the action with professional and economic interests, its duration, the manner of participation, its effect on the public service and the severity of the sanction applied are assessed together. It is not correct to present the Tayfun Cengiz decision as an assurance of outcome for all absence or work stoppage cases. The similarity should be established on the real purpose of the action and the specific circumstances. [3; 5; 12]
In a public servant’s disciplinary file, the union decision, the date of the announcement, the duration of participation, the duty roster, the request for a defense and the text of the defense should be preserved. Even a light sanction may affect future union participation; on the other hand, the personal effect of the application must still be made concrete. The union’s institutional application and the member’s personal application against the disciplinary penalty do not replace each other.
In claiming reinstatement, union compensation and other claims arising from employment together or separately, mediation as a condition precedent to litigation and the special time limits are determined claim by claim. The scope of the lawsuit claim should be consistent with the mediation record; it should be kept clear which claim the application made to protect the time limit contains. [7; 8]
How is the comparison made in establishing the union-related reason?
In a claim of union-based discrimination, the relevant characteristics of the compared employees should be explained. Being at the same workplace is not always sufficient; similarity is investigated with regard to duty, seniority, performance criterion and the operational reason on which the employer relies. For example, the dismissal of unionized employees in the same period may be noteworthy, but a definite conclusion cannot be reached on this number alone without knowing the overall change in the workplace. The situation of employees who are members and who are not, the new people hired and the criterion by which the selection was made should be assessed together. [2, Art. 25]
This investigation does not mean accepting the employer’s statement as true in advance. If, while speaking of economic contraction, the employer has hired new workers for the same duty, or if the performance ground conflicts with earlier favorable records, these points should be made concrete. The applicant may request that records they do not have be produced by the court, explaining which fact those records would show. Instead of requesting all workplace records in an indefinite manner, focusing on a specific period, group of employees and evaluation criterion makes the examination more functional.
Proof is not the same in termination and in other discriminatory acts
Article 25 of Law No. 6356 sets up the order of proof separately for union-based discrimination in termination and for that other than termination. In a termination action, the employer’s burden of proving the reason for termination should be distinguished from the employee’s showing that the reason put forward is not real but union-related. In an act other than termination, the effect of the employee’s showing strong indications on the other party’s burden of explanation and proof is taken into account. For this reason, it cannot be said that in all files proof belongs only to the employee or only to the employer. [2, Art. 25/6–7]
In the petition, the function of each document within this order should be stated. The date of membership may show the beginning of the union relationship, the employer’s letter the stated ground of the act, and the comparative personnel record the consistency of the practice. A witness should describe the conduct they themselves observed; reporting a rumor in the workplace as if it were definite information is assessed differently. Listing several weak indications one after another is not the same as presenting facts that support one another together.
The union’s right and the member’s individual claim
A union as an organization may be affected by an interference directed at its own activities; a member, on the other hand, may suffer personal harm because of termination, a disciplinary penalty or a change in working conditions. Which application will be made by the union and which on behalf of the member should be determined accordingly. The union’s providing legal support does not mean that every individual complaint of a member automatically becomes the union’s own right. The document of representation, the status as a party and the subject of the dispute should be clarified at the beginning of the file. [1–4]
In the Kristal-İş decision, the effect on the right to organize of an interference with collective action comes to the fore, while in the Tayfun Cengiz decision a disciplinary sanction applied to a public servant was assessed. Transferring the structure of one application as it is to the other may therefore be mistaken. The common constitutional principle is the examination of the concrete reasoning of the interference and its effect on organizing; the court with subject-matter jurisdiction and the redress sought are not the same. [5, 6]
Can a light sanction have a serious constitutional effect?
A penalty that seems relatively light, such as a warning, may affect the person’s participation in future union activity. The importance of the Tayfun Cengiz decision is that it did not look only at the monetary or professional weight of the sanction. However, it cannot be concluded from this that every act carried out relying on a union decision is immune from sanction. The purpose of the action, its duration, its effect on the service and the institution’s reasoning are assessed. While attaching the union’s decision, the applicant should also explain the scope of their own conduct. [5]
The need, in the Kristal-İş decision, to make the public interest grounds concrete shows that it is not sufficient for the administration merely to repeat the concepts in the legislation. If a security or health purpose is put forward, it should be explained how this purpose is affected in the case and why the interference is necessary. On the other hand, the court’s task is not to deliver the result the union prefers in every union dispute; it is to ensure that conflicting interests are assessed in accordance with the constitutional safeguards. [6]
Errors made in the claim and the calculation of compensation
Union compensation, reinstatement and other claims arising from employment do not rest on the same legal cause. Which claim arises from which event, which elements of pay are taken into account in the calculation and how the claims relate to one another should be explained. Duplicate payment should not be assumed for the same damage or the same legal consequence. On the other hand, the fact that a reinstatement claim was not used does not mean that union compensation falls away in every case. The special provision in the Law should be examined separately. [2, Art. 25; 7, 8]
In the application to mediation, stating the nature of the dispute correctly and keeping the final record are important for the later lawsuit. An administrative action concerning a public servant’s disciplinary penalty and the action of a private-sector employee before the labor court are not subject to the same time limit and the same prior application regime. The application’s bearing the title “right to organize” does not remove this procedural distinction. That the claim of right is strong does not, on its own, cure the problem of a wrong authority or a missed time limit.
For the details of the subject, you may also see our articles on freedom of association and qualified rights under Constitutional Court decisions. For our firm’s work in this area, you may see the page on Constitutional Court and European Court of Human Rights applications.
Conclusion
In a file on the right to organize, membership, activity, discrimination and termination should be connected to one another; the regimes of employees and public servants should be kept apart. Concrete comparative evidence and the correct tracking of the short reinstatement time limits are important. Merely listing articles of the constitution, without explaining the real effect of an interference that renders union activity ineffective, would not be sufficient.
Frequently Asked Questions
Is dismissal because of union membership possible?
Termination for a union-related reason is prohibited. However, the real reason for the termination and the union connection are assessed on the basis of evidence.
How much is union compensation?
The statutory lower limit is the amount of one year of pay. The specific amount and the elements of the calculation are determined according to the file.
Is the first application for reinstatement made to the court?
Under mediation as a condition precedent to litigation, the mediator is applied to first; the one-month period is important.
Does a union decision make every work stoppage lawful?
No. The status of the employee, the purpose of the action, the nature of the duty and the effect on the service are examined.
Can a light penalty such as a warning give rise to a violation of rights?
Yes. Its chilling effect on union activity and its reasoning matter.
Does not seeking reinstatement prevent union compensation?
It does not prevent it automatically. The conditions and time limits of the separate claim for compensation are assessed.
Sources and legal bases
1 — Constitution, Arts. 51, 53, 54. Text.
2 — Law No. 6356 on Trade Unions and Collective Labor Agreements, especially Arts. 25, 63. Text.
3 — Law No. 4688 on Public Servants’ Trade Unions and Collective Agreement. Text.
4 — European Convention on Human Rights, Arts. 11, 35. Text.
5 — Constitutional Court, Tayfun Cengiz, Application No. 2013/8463, September 18, 2014. Decision.
6 — Constitutional Court Plenary Assembly, Kristal-İş Sendikası, Application No. 2014/12166, July 2, 2015. Decision.
7 — Labor Law No. 4857, Arts. 20–21. Text.
8 — Labor Courts Law No. 7036, Art. 3. Text.
9 — Law No. 2577, Arts. 7, 11, 27. Text.
10 — Law No. 6216, Arts. 45–50. Text.
11 — Constitutional Court, UYAP Attorney Portal application guide. Guide.
12 — Kemal Efe Sayın and Canberk Gümüş, “The Right to Strike of Public Servants in the Decisions of the Constitutional Court” (“Anayasa Mahkemesi Kararlarında Kamu Görevlilerinin Grev Hakkı”), Journal of the Faculty of Law of the Turkish-German University (Türk-Alman Üniversitesi Hukuk Fakültesi Dergisi), 5/2, 2023, pp. 567–622. Study.