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Termination of Employment Convention, 1982 (No. 158) - Türkiye (RATIFICATION: 1995)

Other comments on C158

Observation

Direct Request

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The Committee notes the observations of the Turkish Confederation of Employers’ Associations (TISK), communicated together with the Government’s report. It further notes the observations of the Confederation of Progressive Trade Unions of Türkiye (DISK), received on 1 September 2022.

Follow-up to the recommendations of the tripartite committee (representation made under article 24 of the ILO Constitution)

The Committee notes that, at its 341st Session in March 2021, the ILO Governing Body approved the report of the tripartite committee set up to examine the representation submitted by the Action Workers’ Union Confederation (Aksiyon-Is) under article 24 of the ILO Constitution (GB.341/INS/13/5). The tripartite committee issued conclusions and made recommendations in relation to: (i) the summary dismissal of thousands of Turkish workers, including all members of Aksiyon-Is, by legislative decree on the grounds that they were terrorists who had supported the coup attempt that took place in Türkiye on 15 July 2016; (ii) the lack of due process in respect of the appeals procedures held before the Inquiry Commission established to examine the terminations; and (iii) the situation of the dismissed workers who suffered from retaliatory actions that impeded them from securing alternative employment, receiving termination indemnities or their entitlements under the health, employment and pension systems to which they were affiliated and contributing.

The tripartite committee found that the Government summarily dismissed thousands of workers, including all 29,579 members of Aksiyon-Is, under emergency decrees issued by the Government following the attempted coup, deeming the workers to be terrorists on the basis of alleged links with a terrorist organization merely due to their association with the trade union confederation. The dismissed workers were not informed prior to the dismissal of the reasons for their termination, nor were they afforded the opportunity to defend themselves prior to being dismissed. The tripartite committee also found that the workers were apparently denied the opportunity to present information or evidence in their defense, including witness testimony, to the Inquiry Commission on the State of Emergency Measures responsible for examining their appeals. The tripartite committee found that, in addition to being summarily dismissed, the workers concerned were blacklisted as being or having ties to terrorists, precluding them from securing alternative employment. They received no termination indemnities and were deprived of their entitlements under the health, unemployment and pension systems to which they were affiliated and had been contributing, in violation of Article 12 of the Convention. The tripartite committee also observed, citing Article 9(2) of the Convention, that the sample cases set out in the 2019 Inquiry Commission report appeared to place the burden of proof on the worker, in addition to restricting their means of defense. It urged the Government to ensure that the dismissed workers are ensured a full and fair opportunity to argue their case and present information and evidence in their defense in challenging their dismissals, and that the principle of due process is fully observed in each individual application, including on appeal. Noting that the work of the Inquiry Commission is still under way, the tripartite committee urged the Government to ensure full reconsideration on the merits of those cases in which applications have been rejected without the applicants having had the opportunity to present oral statements or witnesses, and to ensure this right of defense for those dismissed workers whose cases have not yet been examined. Noting the dire impact of the dismissals on the workers’ ability to secure alternative employment, the tripartite committee urged the Government to make all efforts to ensure a rapid, comprehensive and impartial review of the merits of each individual case, and in the event that the dismissals were found to be unjustified, to award compensatory damages and restitution of accrued benefits. The tripartite committee requested that the Government take into account these observations in its application of the Convention and invited it to provide information for examination and possible further monitoring by the Committee of Experts.

The Committee deeply regrets that the Government does not refer in its report to any measures taken to address the concerns and recommendations of the tripartite committee regarding the denial of the dismissed workers’ rights to be informed of and present a defense prior to dismissal, as well as of their right to a fair, impartial review of their termination decision. The Committee further regrets that the Government does not provide concrete information on the situation of those dismissed workers whose appeals were upheld. The Committee therefore urges the Government to take all necessary measures to implement the recommendations of the tripartite committee approved by the Governing Body and requests the Government to provide full information in this respect in its next report.

Articles 4 through 9, 10 and 12. Valid reason for termination. Right to present a defense. Right of appeal to an impartial body. Adequate compensation and termination indemnities. The Committee notes the conclusions of the tripartite committee referred to above concerning the summary dismissals of thousands of workers since July 2016, including all members of the Aksiyon-Is trade union confederation. While the Committee notes the Government’s position that the dismissals were not based on the workers’ affiliations with the trade union confederation, it once again emphasizes that Article 4 of the Convention provides that the employment of a worker shall not be terminated unless there is a valid reason connected with the capacity of conduct of the worker or based on the operation requirements of the undertaking, establishment or service. Moreover, prior to dismissal, the worker should be informed of the reason for the termination decision and be afforded the opportunity to be heard. In this context, the Committee draws the Government’s attention to paragraphs 146 and 150 of its 1995 General Survey on Protection against unjustified dismissal, which provide that, pursuant to Article 7 of the Convention, “the worker, before his employment is terminated, must have an opportunity to defend himself against the allegations made, which presupposes that the latter should be expressed and brought to his attention before the termination. […] It is important that the allegations are expressed and communicated to the worker without ambiguity and that the worker is given a real opportunity to defend himself.” Moreover, pursuant to Articles 8 and 9(2) of the Convention, the dismissed worker is entitled to appeal the termination to an impartial body and should not have to bear alone the burden of proving that the termination was not justified. The Committee notes the Government’s indication that as of 27 May 2022, the number of applications submitted to the Inquiry Commission stood at 127,130. The Commission had handed down decisions on 98 per cent of the applications, delivering 124,235 decisions (17,265 appeals accepted and 106,970 rejected). The Government indicates that 61 of the acceptance decisions are related to the opening of organizations that had been shut down, such as associations, foundations and television channels. The Committee urges the Governmentto implement the recommendations of the tripartite committee to make all efforts to ensure full reconsideration on the merits of those cases in which applications have been rejected without the applicants having had the opportunity to present oral statements or witnesses, and to ensure this right of defence for those dismissed workers whose cases have not yet been examined. The Government is requested to provide detailed updated information on the manner and extent to which the recommendations of the tripartite committee have been given effect.

The Committee is raising other matters in a request addressed directly to the Government.

[ The Government is asked to reply in full to the present comments in 20 2 4.]