A work stoppage called on a union decision does not in every case make a disciplinary penalty unlawful; and failing to report to work does not in every case justify punishment. The purpose of the action, its connection with working life, its duration, its effect on public service and the sanction imposed must be examined together. In its decisions, the Constitutional Court (AYM) draws this distinction through the different scopes of the right to organize and the freedom of association.
The focus of this article is disciplinary penalties imposed on public officials. Workers under collective bargaining and strike arrangements in the private sector and public officials' union activities are not governed by the same legal framework. A dispute involving a person with worker status cannot be resolved solely on the basis of a decision concerning civil servants.
Which constitutional safeguard applies to union activity?
Article 51 of the Constitution regulates the freedom of employees and employers to form trade unions and to join them, in order to protect and advance their economic and social rights and interests in working relations. The protection is not limited to union membership. Activities carried out in line with the union's objectives must also be able to be effectively pursued.
Nevertheless, the fact that a statement or action is organized by a union does not mean that all of its activities automatically fall within the core of Article 51. The real purpose of the action and its connection with working life must be examined. Where no such connection exists, the freedom of association under Article 33 of the Constitution or other rights may come into question.
Why is the distinction between public officials and workers necessary?
For public officials, disciplinary rules on status are set out in Law No. 4688 on Public Officials' Trade Unions and Collective Labour Agreements (Kamu Görevlileri Sendikaları ve Toplu Sözleşme Kanunu) and related legislation; for workers, Law No. 6356 on Trade Unions and Collective Labour Agreements (Sendikalar ve Toplu İş Sözleşmesi Kanunu) and labour legislation are assessed together. Working in a public institution does not by itself show that a person holds civil servant status. The legal route of a public-sector employee working under an employment contract may differ from that of an established civil servant.
For this reason, the first question is the status of the person who took part in the action. Without examining the appointment act, the employment contract, the job title and the special law that applies, the type of penalty or case cannot be determined directly. A wrong assumption about status may lead to the wrong substantive law and the wrong time limit being applied.
Why did the Tayfun Cengiz decision find a violation?
In its decision in Tayfun Cengiz, Application No. 2013/8463, 18 September 2014, the Constitutional Court examined an applicant who was a teacher and received a reprimand (uyarma) after not attending work for two days on the union's call. The action was a union response to a draft law concerning the education sector. Considering the event as a whole, the Court examined whether the disciplinary sanction amounted to an interference with the right to organize. (Tayfun Cengiz, §§ 58–62.)
A short direct quotation from the decision
“Accordingly, in interferences with the right to organize, it must be assessed whether the measure chosen to achieve the aim pursued is suitable, necessary and proportionate.”
Source of the quotation: Constitutional Court, Tayfun Cengiz, Application No. 2013/8463, 18 September 2014, § 54.
How should the operative part be stated?
Operative part of the Constitutional Court's decision: The right to organize guaranteed by Article 51 of the Constitution was violated. The decision was taken unanimously. The applicant's claim for compensation was rejected. (Tayfun Cengiz, assessment of redress and the operative part.)
This outcome does not permit a general conclusion that every absence supported by a union decision is lawful. The lesson of the decision is that, even where the sanction is light, its effect on union participation must be assessed. The reprimand was not regarded as too insignificant to amount to an interference with the right.
Why did the Canan Gül decision reach a different result?
In its decision in Canan Gül and Education and Science Workers' Union (Eğitim ve Bilim Emekçileri Sendikası), Application No. 2022/74477, 18 December 2024, the Court examined a monthly salary reduction (aylıktan kesme) imposed on a teacher for not attending work for one day on a union's call. The Court considered that the call did not fall within the core of union activity related to working life, and examined the individual applicant's complaint under the freedom of association. (§§ 11–14.)
Operative part of the Constitutional Court's decision: The Court found no violation of the freedom of association as regards the individual applicant. As for the union, a separate assessment of its standing to apply was made; the penalty imposed on the individual was not treated as a penalty imposed on the union. (§§ 15, 20 and the operative part.)
Legal characterisation: The difference between the two decisions does not lie merely in whether the action lasted one day or two. The purpose of the action, its link to the core union sphere and the balance struck for the continuity of public service are decisive. For this reason, a file cannot rest on the existence of a union decision alone; the content of that decision must also be explained.
How should the union decision be assessed in the file?
The date and scope of the decision must be established
The body that made the call to action, the persons it covered, and its date and duration must be documented. It must be shown whether the participant's action was within or outside the limits of that call. A document prepared afterwards, or one whose connection with the event cannot be explained, may not by itself reveal the will held at the time of the event.
The file should contain not only the operative sentence of the union decision but also its reasoning. The link with matters such as working conditions, occupational rights, pay, safety or the organisation of education services must be made concrete. Otherwise, it remains unclear which right the constitutional protection is being invoked for.
How is the link to working life shown?
An action may have more than one purpose. In such a case, the defence should not rely solely on the label of union purpose; the demands expressed must be connected with the economic, social or professional interests of the employees. It cannot be said that every statement containing political debate loses its union character, nor that every political call made by a union is core union activity.
The examination must be carried out on the whole text and the concrete circumstances of the case. For example, a reaction to an education regulation may be justified by its link with teachers' professional activity in a different way from a general political protest. However, this example does not mean that a violation finding will inevitably follow in every education-related protest.
How should the continuity of public service be argued?
Where the administration claims that a service was interrupted, it must explain which service was affected, for how long and with what consequences. A single result cannot be applied to all public services without assessing the nature of the action and the characteristics of the duty performed. The effects may differ between a service that must be performed urgently and without interruption and one with a different working arrangement. Disciplinary penalties imposed for prison protests are examined separately in the article on prison protests and hunger strikes.
Nor should the applicant merely assert in the abstract that the service was not affected. The duty roster, the duration of the action, prior notice, the measures taken and concrete service records may carry weight in the file. The legal assessment must be able to compare the administration's claim with the applicant's explanation.
Is a light disciplinary penalty always proportionate?
No. Proportionality is not determined solely by the amount of money or by where the penalty sits in the disciplinary scale. A penalty may deter employees from taking part in union activity in the future and may have consequences for their record and professional advancement. The existence and weight of these effects must be explained in the concrete file.
On the other hand, saying that a deterrent effect exists does not automatically remove every sanction. A lawful aim, a clear legal basis, the relevant reasoning and a proportionate penalty must be considered together. Constitutional review must not be carried out by skipping any of these elements.
On which points should the disciplinary action be reviewed?
| Subject of review | Question to ask | Key document |
|---|---|---|
| Act and person | Which employee, on which date, carried out which conduct? | Duty roster and concrete finding |
| Union connection | What does the call to action aim at, and whom does it cover? | Union decision and announcement |
| Legal basis | Does the applicable provision match the act? | Disciplinary decision and relevant law |
| Procedural safeguard | Was the charge notified and an effective defence obtained? | Request for defence, service record, defence statement |
| Necessity | Has the effect on service and the need for a sanction been explained? | Administrative reasoning and service records |
| Proportionality | Were lighter means and the effects of the penalty examined? | Reasoning section of the decision |
The disciplinary file should also be reviewed separately for competence, limitation periods for investigation and penalty, the right of defence and the reasoning. The fact that a disciplinary measure interferes with a constitutional right does not make procedural objections unimportant. Likewise, relying only on a procedural error does not remove the need to explain the union nature of the act.
Which time limits matter under Law No. 657?
Article 127 of Law No. 657 on State Civil Servants (Devlet Memurları Kanunu) contains limitation provisions linked to the date the act came to light and the date it was committed. Article 130 governs the right of defence, and Article 135 regulates objections to disciplinary penalties. The applicable period must be calculated by determining the type of penalty and the special legislation to which the person is subject. Automatically applying the general civil servant provisions to persons with a special status is incorrect.
An administrative objection and an administrative action are not the same procedure. A petition submitted to the wrong authority, or merely forwarded to the union, should not be assumed to preserve the time limit for bringing an action. The date of notification, the procedure used and its effect on the time limit must be shown on a concrete timeline.
Which documents should be gathered when preparing an application?
- Documents showing union membership and the status valid on the date of the action.
- The decision of the competent body on the action, its reasoning, its announcement and the scope of the call.
- The duty and work roster, the attendance record and the records showing the effect on service.
- Documents on the initiation of the disciplinary investigation, the request for a defence and the imposition of the penalty.
- Objection petitions, administrative and court decisions, and notification or date-of-knowledge records.
- If comparison with similar cases is to be made, documents showing the same status, action and penalty characteristics.
Gathering documents is as important as explaining what they show. A long list of annexes does not become an effective defence unless the legal link is established. The applicant should state which objection each annex supports.
Are the compared decisions really similar?
Looking only at the result paragraph of a precedent may be misleading. The applicant's status, the purpose of the action, its duration, the penalty imposed and its effect on service must be compared. The fact that the Tayfun Cengiz and Canan Gül decisions did not reach the same result shows the importance of this comparison.
Where a decision is invoked in defence, its similarities as well as its significant differences should be disclosed candidly. It can be reasoned why the court would not regard a difference as decisive. Discussing the legal significance of a difference is a more robust method than concealing it.
Which right should be invoked in an application to the Constitutional Court?
The title of an application alone does not determine the legal characterisation. For activity concerning shared interests in working life, the right to organize may be invoked; for organised action of a different nature, the freedom of association or the right of assembly may come into question. The applicant must clearly set out the facts and the essence of the constitutional complaint.
Once ordinary and effective remedies have been exhausted, the general thirty-day period for individual applications applies. The standing of the union and of its member must be assessed separately. A penalty imposed on a member does not automatically show that the union's own right was directly violated. The distinction on admissibility in the Canan Gül decision is especially important in this regard.
For more on this subject, see qualified rights in Constitutional Court decisions and dismissal over social media posts. For our firm's work in this field, see the Constitutional Court and European Court of Human Rights applications page.
Conclusion
Whether a disciplinary penalty for union activity is lawful cannot be resolved solely by the existence of a union decision. The purpose of the action, its connection with working life, its effect on public service and the reasoning for the sanction must be assessed together. Even a penalty that appears small is subject to constitutional review.
The Tayfun Cengiz decision shows the effective protection of the right to organize, while the Canan Gül decision shows the consequences of the distinction between core union activity and general organisational activity. Without determining the right, the status, the legal basis and the route of application that are correct for the concrete file, a final conclusion cannot be reached.
Frequently Asked Questions
If there is a union decision, is a work stoppage automatically deemed permitted?
No. The purpose and scope of the decision, the status of the employee, the facts and the effect on public service are examined together. A union decision is an important document, but on its own it does not resolve all the legal questions.
Can a one-day action not be penalised?
Duration is not the sole criterion. There is also an example in which the Constitutional Court found no violation concerning a one-day action. The purpose, scope and justification of the sanction are decisive.
Can a reprimand violate the right to organize?
Yes. In the Tayfun Cengiz decision, a violation was found in respect of a reprimand. However, the same result does not follow automatically for every reprimand.
Do public-sector workers and civil servants follow the same route?
No. Depending on status, the routes of labour law and administrative law may differ. The employment contract, the appointment document and the applicable special regulation must be examined.
Can the union also file an individual application over a penalty imposed on a member?
The union's own standing as applicant is assessed separately. The fact that a member has been penalised does not by itself prove that the union was directly affected.
Sources and legal bases
- Constitution of the Republic of Türkiye (Türkiye Cumhuriyeti Anayasası), Articles 13, 33, 51 and 54.
- Law No. 657 on State Civil Servants (Devlet Memurları Kanunu), Articles 125, 127, 130 and 135.
- Law No. 4688 on Public Officials' Trade Unions and Collective Labour Agreements (4688 sayılı Kamu Görevlileri Sendikaları ve Toplu Sözleşme Kanunu) and Law No. 6356 on Trade Unions and Collective Labour Agreements (6356 sayılı Sendikalar ve Toplu İş Sözleşmesi Kanunu).
- Constitutional Court (AYM), Tayfun Cengiz, Application No. 2013/8463, 18 September 2014, in particular §§ 54–62 and the operative part.
- Constitutional Court (AYM), Canan Gül and Education and Science Workers' Union (Eğitim ve Bilim Emekçileri Sendikası), Application No. 2022/74477, 18 December 2024, §§ 11–20 and the operative part. Full decision links may require registration.
- Law No. 6216 on the Constitutional Court (Anayasa Mahkemesinin Kuruluş ve Yargılama Usulleri Hakkında Kanun), Articles 45–50.
- Constitutional Court, Summaries of Decisions on Qualified Rights (Nitelikli Haklar Karar Özetleri), June 2025, sections on public officials and the right to organize.