Violation Of Trade Union Rights Due To Termination Of Employment Contract As A Result Of Short-Term And Peaceful Work Stoppage
Events
The union of which the applicant was a member decided to strike in January 2015 and the Council of Ministers decided to postpone the strike. Following the postponement, all workers at the respondent workplace, including the applicant, organized work slowdowns lasting 20-25 minutes a day. Thereupon, the respondent workplace terminated the employment contracts of thirty workers, including the applicant.
In the lawsuit filed by the applicant for reinstatement and union compensation, the labor court partially accepted the lawsuit and decided to reinstate the applicant and to reject the claim for union compensation. The judgment of the trial court was overturned by the Court of Cassation on the grounds that the applicant had acted despite the strike suspension order and the case was dismissed definitively.
Allegations
The applicant claimed that the termination of his employment contract due to his participation in the work slowdown action violated his right to freedom of association, despite the postponement of the strike decision taken by the union by the Council of Ministers.
The Court’s Assessment
Considering the importance of the constitutionally guaranteed right to strike, the reason limiting/forcing this right must be convincingly and clearly demonstrated. Otherwise, the exercise of the constitutional right to strike and collective bargaining becomes virtually meaningless. In this respect, short-term protests against practices affecting the economic, social and working conditions of workers, which are in the nature of the exercise of a democratic right, should be tolerated. In the concrete case, the Court of Cassation stated that the applicant committed an unlawful action and his employment contract was terminated for valid reasons only due to the existence of the strike postponement decision; it did not make any further evaluation.
Considering that the action in which the applicant participated was short-lived and peaceful and aimed at expressing the disputes regarding the collective labor agreement, the said action should be evaluated within the scope of the right to unionize. In addition, the extent to which the employer must tolerate the actions in question must be addressed. According to the first instance court, all workers at the workplace engaged in work slowdowns lasting 20-25 minutes for eleven days and these actions did not cause irreparable damage. The employer dismissed thirty workers on the grounds of loss of production. However, as both the Court of First Instance and the Court of Cassation emphasized, the employer did not provide any explanation as to how it determined the thirty workers it dismissed. Moreover, the employer did not clarify the applicant’s position at the workplace, the reason for his participation in the work slowdowns, the burden it imposed on him, and whether it had an impact on other workers. Accordingly, the employer failed to show that the applicant’s actions went beyond the purpose of seeking his democratic rights. On the other hand, the applicant suffered a severe consequence and lost his job as a result of his actions within the framework of his right to unionize. In this context, it is clear that the application of the principle of last resort developed by the Court of Cassation in cases of termination of employment is vital for the protection of fundamental rights and freedoms. However, in the concrete case, it has been observed that the principle of last resort was not evaluated in the termination of the applicant’s employment contract.
Within the scope of these explanations, it is concluded that the employer’s interference with the applicant’s trade union right in the concrete application would have a deterrent effect on his and others’ exercise of their trade union rights, whereas the state failed to fulfill its positive obligations due to the lack of an effective judicial review required by the constitutional right in question by the courts of first instance.
For the reasons explained above, the Constitutional Court held that the right to freedom of association was violated.
You can access our other article examples and petition examples by clicking here.