May a Reemployment Lawsuit be Filed Although the Relevant Mutual Rescission Agreement has been Signed?2019, Erdemir&Özmen Avukatlık Ortaklığı
May a Reemployment Lawsuit be Filed Although the Relevant Mutual Rescission Agreement has been Signed?
Under a mutual rescission (contract breaking) agreement, an employer and a laborer may mutually revoke the employment contract between each other. The revocation of the employment contract under this agreement is different from termination of the employment contract. In mutual rescission, the consequences created by termination will not come into question. In case of revocation of the employment contract under mutual rescission, the laborer will not be able to benefit from the employment security, will not be able to claim a receivable and will not be able to receive even an unemployment allowance.
“The principle of interpretation in favor of the laborer”, which is observed as a rule within the context of the Labor Code, is always taken into consideration for mutual rescission as well. In order for a mutual rescission agreement to be valid, it is necessary for such agreement to meet certain conditions, since it is a concept which might damage the labor rights by its consequences. In our newsletter, we will address the conditions necessary to be satisfied by a mutual rescission agreement in case the mutual rescission offer comes from the employer party, and whether or not a reemployment lawsuit may be filed in spite of the relevant mutual rescission agreement.
What are the conditions necessary for a mutual rescission agreement to be valid?
There is no legal arrangement about mutual rescission agreements which are frequently encountered in practice and also recognized by the Regional Courts of Justice and the Supreme Court of Appeals. The agreement is subject to freedom of contract between the parties. However, pursuant to “the principle of interpretation in favor of the laborer”, with the jurisprudences established up to the present, “the items that will affect the validity of mutual rescissions agreements” have been determined. To briefly touch upon these items:
The laborer should have a reasonable benefit in concluding the mutual rescission agreement. As we have stated, the revocation of the employment contract under mutual rescission will prevent the exercise of the rights arising from unilateral termination. Therefore, in the mutual rescission agreement, it is necessary to set forth a reasonable benefit which will justify the laborer’s waiver from exercising his rights arising from termination. This condition will be assessed separately for each concrete case; and in practice, it is generally required that an additional benefit has been provided to the laborer by the employer, in addition to severance pay, notice pay and the laborer’s other accrued receivables.
It is necessary to inform the laborer about the mutual rescission. Even though the employer and the laborer revoke the employment contract by mutual agreement between each other; in case the mutual rescission offer comes from the employer party, it is necessary to inform the laborer expressly about the reason why the employment contract is revoked and the consequences of the mutual rescission, and it is also necessary to specify expressly that laborer acknowledges this reason and these consequences.
It is necessary that the mutual recission agreement has been signed by the laborer with his explicit and free will. In the mutual rescission agreement submitted by the employer, it is necessary that the laborer has affixed his signature after the employer has enabled the laborer to understand the content and nature of the agreement, with his explicit and free will. This is because; in the case that the employer makes the laborer sign also the mutual rescission agreement together with a number of other documents while the employment relationship is being terminated and that the employer makes the laborer sign the agreement without enabling the laborer to understand the content and nature of the agreement, these cases would cause such mutual rescission agreement to be invalid.
The conditions specified above are the mandatory items which are sought for a mutual rescission agreement to be valid and which a mutual rescission agreement must contain as required by the principle of interpretation in favor of the laborer. In the absence of one or more than one of these items, the mutual rescission agreement would be invalid, the employment contract would be considered as terminated without justifiable reason and it would be possible for the laborer to exercise his rights arising from the termination.
May a reemployment lawsuit be filed in the absence of one or more than one of the items specified above?
As we have stated above; in case the mutual rescission agreement does not contain one or more than one of these items, the employment contract shall be deemed to have been terminated without indicating a justifiable or a valid reason, and it will become possible for the laborer to claim his rights and receivables against the employer. In such case, it should be adopted that the right to file the relevant reemployment lawsuit shall arise in favor of the laborer who has employment security.
Employment security applies to the laborers:
- with a length of actual employment of 6 months or more than 6 months,
- with an employment contract for indefinite duration,
- at a workplace where 30 or more than 30 laborers are employed,
- where there is no employer’s representative.
In the case that the above conditions take place for the laborer and that the mutual rescission agreement does not however contain one of the items specified above; the laborer may assert the invalidity of the agreement and claim his reemployment even though the employer has made him sign the mutual rescission agreement. As per the concept “Mandatory Mediation in Labor Disputes” which entered into force as of 01.01.2018 in our legal system, the laborer who wishes to file a reemployment lawsuit has to apply firstly for a mediator within 1 month following the date that the employment contract terminates. In case a consensus could be reached in the course of the negotiations before a mediator, a document regarding disagreement shall be issued and it will be necessary to file before the labor court the relevant lawsuit containing the request for reemployment, which lawsuit should be filed within 2 weeks as from the date of this document. In case these periods are not complied with, the laborer would forfeit his right to file the lawsuit which contains the request for his reemployment.
In conclusion, it is possible for the parties to revoke the employment contract bilaterally by mutual rescission agreement. However; “the principle of interpretation in favor of the laborer”, dominant on the labor law, is also observed in this regard, and the mutual rescission agreement should protect the laborer’s interests. By mutual rescission, since the laborer shall be deemed to have waived of his rights and receivables arising from termination of the employment contract; the laborer must be provided with a reasonable benefit in order for him to undersign the mutual rescission agreement and it must be ensured that the reason why the laborer is invited to mutual rescission is specified expressly and that the laborer undersigns the mutual rescission agreement, with his explicit and free will. In the absence of these fundamental items, it would not be possible to say that there is a valid mutual rescission agreement, and the laborer might claim his receivables and exercise his rights that arise from termination of the employment contract. Reemployment lawsuit constitutes one of these rights. In the existence of the statutory conditions, the laborer may file the relevant reemployment lawsuit although the mutual rescission agreement has been signed.