How Is the 30-Employee Requirement for Reinstatement Calculated? Lawyer Gizem Gonce Explains
This article provides general information. Legislation, time limits and amounts may change over time; obtain an up-to-date assessment of your specific situation.
Av. Gizem Gonce
The right to reinstatement, which concerns millions of employees dismissed by their employers, depends on the number of employees at the workplace. The requirement of at least 30 employees set out in the Labour Law is one of the basic conditions for benefiting from employment protection. However, important questions arise as to how the number of employees is calculated, how employees working at different branches are treated, and whether subcontracted workers are included in the calculation.
Lawyer Gizem Gonce discussed the 30-employee criterion that is a common subject of inquiry in reinstatement cases and explained the points employees should pay attention to so that they do not lose their rights.
“The right to reinstatement does not arise merely because someone has been dismissed”
Lawyer Gizem Gonce said that one of the most common misunderstandings in reinstatement cases is the belief that every dismissed employee can request to return to work, and stated that benefiting from employment protection is subject to certain statutory conditions.
Gonce said: “For the right to reinstatement to arise under Article 18 of the Labour Law, conditions such as at least 30 employees working at the workplace, the employee having at least six months’ seniority, and the employee working under an employment contract for an indefinite term are required. In addition, the employee must not be in the position of an employer’s representative specified in the law, and the validity of the termination must be assessed. Therefore, not every dismissal automatically gives rise to a right to reinstatement.”
The 30-employee count does not look only at the branch where the employee works
Drawing attention to important details in calculating the number of employees, Gonce said that employees working at more than one workplace of the same employer in the same line of business may be assessed together.
Gonce said: “For example, suppose an employer has two workplaces operating in the same line of business. If 18 employees work at one and 14 at the other, the total reaches 32. The fact that the employee works only at the branch with 18 employees does not mean that the 30-employee requirement is not met. What matters is that the workplaces belong to the same employer and that the statutory conditions are satisfied.”
Part-time employees may also be included in the count
Emphasising that it is incorrect to think that only full-time employees are taken into account in the 30-employee calculation, Gonce said that employees working under part-time, fixed-term and seasonal employment contracts may also generally be included in the calculation.
Gonce said: “The fact that an employee does not work full-time does not, by itself, require that they be left out of the 30-employee count. The nature of the employment contract and whether the person legally qualifies as an employee are important. Rather than treating every employee group as the same, the actual working relationship and statutory exceptions must be examined.”
Details concerning subcontracted workers and groups of companies
Stating that determining who the employer is also matters in reinstatement cases, Gonce said that the position of subcontracted workers and personnel working within the same group of companies cannot be resolved through an automatic calculation.
Gonce said: “As a rule, subcontracted workers who are employees of another employer are not directly added to the principal employer’s employee count. However, how the working relationship was actually established, whether there was a sham arrangement, and whether there was joint employment must all be assessed. Similarly, being part of the same group of companies is not, by itself, enough to combine the employees of all companies into a single employee count.”
“Not being able to bring a reinstatement case does not mean that all rights have been lost”
Emphasising that people who cannot bring a reinstatement case because fewer than 30 employees work at the workplace may still have other rights, Gonce made the following assessment:
“The conditions for a reinstatement case not being met does not mean that the employee has lost all employment-related rights. Depending on the circumstances of the case, claims such as severance pay, notice pay, unpaid wages, overtime pay and pay for unused annual leave may arise. If the employer’s termination also violates the prohibition of discrimination or another legal rule, it may also be possible to consider different legal avenues. In every case, it must first be determined which right can be claimed and under what conditions.”
Pay attention to the one-month period for applying for reinstatement!
Stating that dismissed employees should not limit themselves to checking the number of employees, Gonce said that the time limits in the reinstatement process are also critically important.
Gonce warned: “An employee who wishes to seek reinstatement must apply to a mediator within one month from service of the notice of termination. If no agreement is reached in mediation, a case must be filed with the labour court within two weeks from the date the final record is drawn up. Missing these time limits may lead to serious loss of rights, so the notice of termination and other documents should be reviewed without delay.”
What should dismissed employees do?
According to Lawyer Gizem Gonce, determining whether there is a right to reinstatement requires examining not only the number of employees at the workplace, but also the employer’s other workplaces, the employee’s seniority, the type of their contract and the grounds for termination.
Gonce said that employees should not conclude that they have no rights based only on the number of people at their workplace, adding: “When assessing the right to reinstatement, every aspect of the working relationship should be examined. Sometimes looking only at the number of employees at a single branch can cause an employee’s potential legal options to be overlooked.”
The 30-employee criterion, which determines the scope of employment protection, directly affects the legal position of dismissed employees. However, the right to reinstatement remains a matter that must be assessed in light of each employee’s own contract and working conditions.
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