1. INTRODUCTION
Although employer
representatives act for and on behalf of the employer, they retain their status
as employees by virtue of working under an employment contract. However, under
certain circumstances, their entitlement to job security may be affected.
Accordingly, it is important to clarify the circumstances under which employer
representatives are entitled to benefit from job security and those under which
they are excluded from such security.
Whether employer representatives
fall within the scope of job security, how the conditions governing termination
should be applied to them, the legal relationship between the cessation of an
employer representative's role and the termination of the employment contract,
and the effect of employer representative status on the legal consequences
arising from the termination of the employment contract, particularly
reinstatement claims, give rise to significant disputes in practice.
This article first examines the
concept of the employer representative and their legal status. It then
evaluates the circumstances under which employer representatives may fall
outside the scope of job security, with particular emphasis on the legal
position of general managers and other senior executives.
2. THE LEGAL CONCEPT OF THE
EMPLOYER REPRESENTATIVE AND THE ELEMENTS OF THEIR EXCLUSION FROM JOB SECURITY
An employer representative is
defined under Article 2 of the Labor Law Nr. 4857 as “a person who acts for
and on behalf of the employer and participates in the management of the work,
the workplace, or the enterprise.” However, not every employee who performs
managerial duties within the workplace or the enterprise qualifies as an
employer representative. In order to attain the status of an employer
representative, certain constituent elements must coexist.
Certain senior executives who
hold the status of employer representatives are excluded from the job security provisions.
However, whether an employer representative falls outside the scope of job
security is not determined solely by her/his job title. Rather, the actual
scope of the authority exercised by the employer representative is assessed as
a whole. Indeed, as reflected in the case law of the Court of Cassation:
“Pursuant to Article 18 of the
Labor Law Nr. 4857, an employee may benefit from the job security provisions
provided that s/he is neither an employer representative or their deputies
responsible for the overall management of the enterprise, nor an employer
representative responsible for the overall management of the workplace who is
also vested with the authority to hire and dismiss employees.
Since employer representatives
who are excluded from job security are, first and foremost, those who are
responsible for the overall management of the enterprise, together with their
deputies, general managers and deputy general managers who manage the
enterprise as a whole are likewise excluded from the job security provisions.
It should be noted, however, that the mere use of the title of general manager
or deputy general manager does not, in itself, result in exclusion from the
scope of job security. What is decisive is whether the individual has been
granted the authority to represent the employer and is responsible for managing
the enterprise as a whole; in this regard, the individual's duties and position
must be examined.
The second category of employer
representatives excluded from job security consists of those who are
responsible not for the overall management of the enterprise, but for the
overall management of the workplace, and who are vested with the authority to
hire and dismiss employees.
Accordingly, those who are
responsible for the overall management of the enterprise are regarded as
employer representatives without the need for any additional requirement. By
contrast, those who are responsible for the overall management of the workplace,
rather than the enterprise, may be regarded as employer representatives only if
they also possess the authority to hire and dismiss employees. Thus,
responsibility for the overall management of the workplace and the authority to
hire and dismiss employees are cumulative requirements. Consequently, a bank
branch manager or a factory manager who is responsible for managing the
workplace but does not have the independent authority to hire and dismiss
employees at her/his own discretion cannot be regarded as an employer
representative and is therefore entitled to benefit from the job security provisions.
Likewise, a human resources manager or personnel manager who has the authority
to hire and dismiss employees but is not responsible for the overall management
of the workplace, is also entitled to benefit from the job security provisions.”
[1]
In determining whether an
individual qualifies as an employer representative for the purposes of job
security, a distinction is drawn between (i) employer representatives
responsible for the overall management of the enterprise and (ii) employer
representatives responsible for the overall management of the workplace who
also have the authority to hire and dismiss employees. As is evident from this
distinction, the mere status of employer representative does not, in itself,
exclude an individual from benefiting from the job security provisions.
According to the case law of the
Court of Cassation, employer representatives who are responsible for the
overall management of the enterprise are excluded from the job security provisions
without any additional requirements. By contrast, employer representatives who
are responsible only for the overall management of the workplace are excluded
from the job security provisions only if they also have the authority to hire
and dismiss employees.
3. THE STATUS OF EMPLOYER
REPRESENTATIVES UNDER THE JOB SECURITY PROVISIONS
The job security provisions
primarily apply, in principle, to employees who are subject to the Labor Law.
These provisions are set out in Articles 18 to 21 of the Labor Law. Pursuant to
Article 18, the conditions governing entitlement to job security are prescribed
therein.
“An employer who terminates the
indefinite-term employment contract of an employee with at least six months’
seniority employed at a workplace where thirty or more employees are employed
must base such termination on a valid ground arising from the employee’s
competence or conduct, or from the operational requirements of the enterprise,
the workplace, or the work. The six-month seniority requirement shall not apply
to employees working in underground operations.”
In order to fall within the
scope of job security, an employee must be employed at a workplace employing
thirty or more employees, have at least six months' seniority, and have had her/his
employment contract terminated without a valid or just cause. In addition, the
employee must not hold the status of an employer representative.
"Based on the evidence
collected in the case file, it was established that the employment contract had
been terminated by the defendant, and that the defendant failed to prove that
the termination was based on a just or valid cause, and that the plaintiff had
more than six months of seniority, and that more than thirty employees were
employed at the workplace on the date of termination, and also that the plaintiff
was not an employer representative. Accordingly, it was concluded that the plaintiff's
appeal was well-founded and that the plaintiff should be reinstated." [2]
This issue is set out under
Article 18 of the Labor Law: “The provisions of this Article, Articles 19
and 21, and the final paragraph of Article 25 shall not apply to employer
representatives and their deputies who manage and administer the enterprise as
a whole, nor to employer representatives who manage and administer the
workplace as a whole and who are vested with the authority to hire and dismiss
employees.”
Accordingly:
“Valid Grounds for Termination
Article 18 – An employer
terminating an indefinite-term employment contract of an employee who has at
least six months of seniority and who is employed at a workplace employing
thirty or more employees shall be required to rely on a valid ground arising from
the employee’s competence or conduct, or from the operational requirements of
the enterprise, the workplace, or the work. (Supplemented sentence: 10/09/2014-6552/Article
2). The seniority requirement shall not apply to employees working in
underground operations.
…
The provisions of this Article,
Articles 19 and 21, and the final paragraph of Article 25 shall not apply to
employer representatives and their deputies who manage and administer the
enterprise as a whole, or to employer representatives who manage and administer
the workplace as a whole and who are authorized to hire and dismiss employees.”
Procedure for Termination
Article 19 – The employer shall give notice of termination in writing and shall
specify the grounds for termination in a clear and precise manner.
An indefinite-term employment
contract may not be terminated on grounds related to an employee’s conduct or
performance without first giving the employee an opportunity to present a defense
against the allegations made against them. However, this shall be without
prejudice to the employer’s right to terminate the employment contract in
accordance with subparagraph (II) of Article 25.
“Employer’s Right to Immediate Termination
for Just Cause
Article 25 – Whether the employment contract is for a definite or an indefinite
term, the employer may terminate the employment contract before the expiry of
its term or without observing the notice period in the circumstances set out
below:
…
The employee may bring legal
proceedings under Articles 18, 20 and 21 by alleging that the termination was
not based on any of the grounds specified in the above subparagraphs.”
Accordingly, the provisions
concerning termination based on a valid ground, written notice of termination,
and the employee's right to bring legal proceedings against a termination for
just cause shall not apply to employer representatives.
“The purpose of this provision
is to enable the employer to terminate, pursuant to Article 17 of the Labor Law,
the employment contracts of employer representatives occupying positions of
particular trust without having to provide any ground for termination where
that trust has been undermined.” [3]
According to the settled case
law of the Court of Cassation, where a manager acts subject to the instructions
or approval of their superiors when hiring or dismissing employees, such person
is not considered as an employer representative:
“As emphasized both in the
reasoning adopted by the court and in the settled case law of the Court of
Cassation, the second category of employer representatives excluded from the job
security provisions consists of those who manage the entire workplace, rather
than the entire enterprise, and who are vested with the authority to hire and
dismiss employees. Accordingly, persons who direct and manage the entire
enterprise are regarded as employer representatives without any additional
requirement. By contrast, those who direct and manage the entire workplace, but
not the enterprise as a whole, may only be regarded as employer representatives
within the meaning of Article 18 if they also possess the authority to hire and
dismiss employees. Thus, the authority to direct and manage the entire
workplace and the authority to hire and dismiss employees must coexist
cumulatively. Accordingly, a person who manages the entire workplace but does
not have the independent authority to hire and dismiss employees at their own
discretion cannot be regarded as an employer representative within the meaning
of Article 18 of the Labor Law and is therefore entitled to benefit from the job
security provisions." (Decision, bearing the Basis number 2009/41752 and
the Decision number 2010/38580 and dated 17.12.2010, of the 9th Civil
Chamber of the Court of Cassation) “In the present case, the defendant's
workplace is the workplace situated in Adana. Although the plaintiff served as
the manager of that workplace, it is evident from the emails submitted by the
defendant as evidence that the plaintiff could exercise the authority to hire
and dismiss employees only with the permission and approval of the
headquarters, rather than at their own independent discretion. Accordingly, the
plaintiff does not fall within the scope of an employer representative as
defined under Article 2 of the Labor Law. Therefore, the first-instance court
erred in treating the plaintiff as an employer representative and rejecting the
claim for protection under the job security provisions.” [4]
As is evident from the settled
case law of the Court of Cassation, the status of an employer representative is
not determined solely by an employee's job title. Rather, when assessing
whether an employee falls outside the scope of job security, the decisive
factor is the actual exercise of authority. It is clear that this status may be
attributed only where the statutory conditions are demonstrated by concrete
evidence in the particular case. Indeed:
"Although the court dismissed
the claim on the grounds that the plaintiff, who held the title of 'Business
Director' at the Turkish workplace of the Buchanan Group, an international
company, and was the only employee in Türkiye, worked under the direct
authority of the employer, and qualified as an employer representative excluded
from the scope of the job security provisions, this conclusion cannot be
upheld.
Pursuant to Article 18 of the
Labor Law Nr. 4857, in order for an employee to benefit from the job security provisions,
the employee must not hold the position of an employer representative or one of
their deputies directing and managing the enterprise as a whole, or an employer
representative directing and managing the entire workplace who is also vested
with the authority to hire and dismiss employees.
Employer representatives who are
excluded from the protection afforded by the job security provisions are, first
and foremost, those employer representatives and their deputies who direct and
manage the enterprise as a whole. Accordingly, general managers and deputy
general managers responsible for directing and managing the entire enterprise
cannot benefit from the job security provisions. It should be noted, however,
that the mere use of the title of general manager or deputy general manager
within a workplace does not, in itself, place an employee outside the scope of
the job security provisions. What is decisive is whether the individual has
been vested with representative authority and is responsible for directing and
managing the enterprise as a whole. In this respect, the employee's actual job
description and position must be considered.
The second category of employer
representatives excluded from the protection afforded by the job security provisions
consists of those who direct and manage the entire workplace, rather than the
enterprise as a whole, and who are vested with the authority to hire and
dismiss employees. Accordingly, persons who direct and manage the enterprise as
a whole are considered as employer representatives without any additional
requirement. By contrast, those who direct and manage the entire workplace, but
not the enterprise as a whole, may only be regarded as employer representatives
within the meaning of Article 18 if they are also vested with the authority to
hire and dismiss employees. Thus, the authority to direct and manage the entire
workplace and the authority to hire and dismiss employees must coexist
cumulatively. Such a workplace may also be a workplace forming part of an
enterprise. Accordingly, a bank branch manager or a factory manager who directs
and manages the workplace but does not have the independent authority to hire and
dismiss employees at their own discretion cannot be regarded as an employer
representative within the meaning of Article 18 of the Labor Law and is
therefore entitled to benefit from the job security provisions. Likewise, a
human resources manager or personnel manager who is vested with the authority
to hire and dismiss employees may still benefit from the job security provisions,
as they do not direct and manage the entire workplace. By contrast, an employee
who directs and manages the entire workplace of an enterprise and who is also
vested with the authority to hire and dismiss employees cannot benefit from the
job security provisions. Our Chamber's case law is consistent with this
approach. (Decision, bearing the Basis number 2007/35929 and the Decision
number 2008/12484 and dated 26.05.2008, of the 9th Civil Chamber of
the Court of Cassation)
According to the case file,
although the plaintiff was employed by the defendant company under an
employment contract with the title of "Business Director", the
authorized representatives of the defendant company were foreign nationals, and
neither the employment contract contained any provision conferring upon the plaintiff
the authority to direct and manage the enterprise as a whole nor was any power
of attorney submitted to that effect. Furthermore, no evidence was produced
demonstrating that the plaintiff had the authority to hire and dismiss
employees. Accordingly, it has not been established by concrete and convincing
evidence that the plaintiff was an employer representative or deputy
responsible for directing and managing the enterprise as a whole, or an
employer representative responsible for directing and managing the entire
workplace who was also vested with the authority to hire and dismiss employees.
Therefore, it must be concluded that the plaintiff is entitled to benefit from
the job security provisions.
"Since the defendant failed
to prove, by concrete and convincing evidence, that the termination of the plaintiff's
employment contract was based on a valid ground, it must be held that the
termination is invalid." [5]
As is evident from the decision,
in determining whether an employee qualifies as an employer representative, the
courts require concrete evidence demonstrating not only that the employer
representative directed and managed the entire workplace, but also that they
were vested with the authority to hire and dismiss employees. Since these
elements could not be proved, it was held that the plaintiff was entitled to
benefit from the job security provisions.
3. RELATIONSHIP BETWEEN
DISMISSAL FROM THE POSITION OF EMPLOYER REPRESENTATIVE AND THE TERMINATION OF
THE EMPLOYMENT CONTRACT
In this context, the termination
of an employer representative's employment contract does not, in itself,
extinguish the person's status as an employer representative or the authority
to represent the employer. Where only the employment contract is terminated,
the individual ceases to be an employee but, unless formally removed from the
position of employer representative, continues to appear as an employer
representative and to retain the authority to represent the employer.
Accordingly, since the person's position as an employer representative has not
come to an end, a separate decision removing the individual from that position
must be duly adopted, and the necessary registration formalities must also be
completed.
4. ASSESSING THE TERMINATION OF
EMPLOYMENT CONTRACTS OF EMPLOYER REPRESENTATIVES IN REINSTATEMENT CASES
The principal consequence of
employer representatives being excluded from job security is that they are not
entitled to bring an action for reinstatement. Accordingly, where their
employment contract is terminated, they cannot assert any claim based on the
invalidity of the termination. Consequently, they are likewise not entitled to
the remedies available in reinstatement actions, including compensation for the
period during which the employee remains unemployed and compensation for the
employer's failure to reinstate the employee.
Nevertheless, the exclusion of
employer representatives from bringing an action for reinstatement does not
deprive them of their entitlement to other employment-related claims. Where the
statutory requirements are satisfied, they remain entitled to claim severance
pay, notice pay, unpaid wages, overtime pay, and other employment-related
receivables.
5. CONCLUSION
Under the Labor Law, the concept
of an employer representative is determined not solely by an employee's title
or position, but by the authority actually exercised by that employee. As
consistently reflected in the settled case law of the Court of Cassation,
holding a senior managerial position is not, in itself, sufficient to exclude
an employee from the protection afforded by the job security provisions.
Rather, employer representative status must be assessed in light of the
specific circumstances of each case and the scope of the representative's
actual authority.
Accordingly, employer
representatives who manage the enterprise as a whole, as well as managers who
manage the workplace as a whole and possess the authority to hire and dismiss
employees, are excluded from the scope of the job security provisions. By
contrast, employer representatives who do not satisfy these statutory
requirements remain entitled to the protection afforded by those provisions.
Att. Şeymanur Elmas
References:
1. Decision, bearing the Basis number
2020/3073 and the Decision number 2020/11570 and dated 13/10/2020, of the 9th
Civil Chamber of the Court of Cassation
2. Decision, bearing the Basis number
2022/3099 and the Decision number 2023/1058 and dated 13.09.2023, of the 11th
Civil Chamber of the Regional Court of Appeal of Adana of the Republic of
Türkiye
3. Süzek, İş Hukuku (Labor Law),
9th Edition, Istanbul, 2013, p. 571.
4. Decision, bearing the Basis number
2022/3099 and the Decision number 2023/1058 and dated 13.09.2023, of the 11th
Civil Chamber of the Regional Court of Appeal of Adana of the Republic of
Türkiye
5. Decision, bearing the Basis number
2015/20996 and the Decision number 2015/29831 and dated 26.10.2015, of the 9th
Civil Chamber of the Court of Cassation
