Communicated on 17 October 2017
SECOND SECTION
Application no. 45876/09
Gülcan BOZKURT KORKMAZ
against Turkey
lodged on 3 August 2009
SUBJECT MATTER OF THE CASE
The application concerns the proceedings initiated by the applicant in order to be reinstated to her previous position after her employment agreement was terminated. In its decision of 26 February 2008, the first-instance court noted that one of the preconditions to file an action for reinstatement (işe iade davası) under the Labour Law is to be employed at a workplace where at least thirty employees worked at the time of dismissal. Observing that only twenty three employees worked in the workplaces of the applicant’s former employer at the material time, the court concluded that she was not entitled to bring an action for reinstatement. The Court of Cassation upheld the judgment on 30 March 2009.
The applicant complains under Article 6 § 1 of the Convention that her employment agreement was terminated without a valid reason and that she had no means to contest her unfair dismissal on account of the reinstatement proceedings being solely reserved for dismissed employees who work in workplaces where at least thirty employees are employed.
QUESTIONS tO THE PARTIES
1. Was Article 6 § 1 of the Convention applicable to the reinstatement proceedings brought by the applicant?
In that connection, did the applicant arguably have a “right” within the meaning of Article 6 § 1 (see, for instance, Chakalova-Ilieva v. Bulgaria, no. 53071/08, §§ 32-33, 6 October 2016)? In particular, did the requirement to be employed at a workplace where at least thirty employees work, which is stipulated in the Labour Law as one of the preconditions to bring reinstatement proceedings, amount to a substantive limitation or to a procedural bar in view of the Court’s case-law on the subject matter (see Roche v. the United Kingdom [GC], no. 32555/96, §§ 116‑125, ECHR 2005‑X)?
2. If Article 6 § 1 of the Convention applied, did the rejection of the applicant’s lawsuit, without an examination on the merits of her claims about the unfairness of her dismissal, on account of the non-satisfaction of the impugned precondition in the Labour Law violate the applicant’s right of access to court, implicitly guaranteed by Article 6 § 1 (see, mutatis mutandis, K.M.C. v. Hungary, no. 19554/11, §§ 31-35, 10 July 2012)? In that connection, were there any other legal remedies available under Turkish law which would have permitted the applicant to contest the unfairness of her dismissal before national authorities?
If not, did the limitation on the applicant’s access to court for the purpose of bringing reinstatement proceedings pursue a legitimate aim and bear a reasonable relationship of proportionality to that aim?
The Government are requested to provide a copy of the documents in the case file stored at the Court of Cassation pertaining to the appeal proceedings, including, in particular, the petition for appeal submitted by the applicant.
The applicant is requested to provide a copy of all relevant documents concerning the termination of her employment agreement, including the documents that she attached to her petition to the labour court.
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