Sponsored briefing: Surprise decision ban as a novelty in Turkish labour law

Yavuz & Uyanik & Akalin’s Murat Uyanik on the importance of the rule of law and the right to legal certainty in Turkish law

Labour Law in Turkey is one of the areas of law in which the most lawsuits are filed and with the highest number of file transfers to the Supreme Court, until the recent launch of the Appeal Courts. This matter is confirmed with the data published by the Ministry of Justice at the end of 2019. According to the relative data, 1,513,943 labour cases were filed between the years 2012 and 2019. According to the aforementioned data, the number of ongoing cases at the end of the year 2019 is 543,692. Upon the multiplying increase in the number of labour cases each year and the Supreme Court’s failure to bear the litigation burden, it has also been observed that the number of chambers coping with labour law disputes has increased to three in the last decade.

Several regulations have been made in the judicial system, due to the substantial increase in the number of cases. Appeal Courts became operational on 20 July 2016 in order to reduce the workload of the Supreme Court. Thus, the Turkish legal system has moved from a two-degree system to a three-degree system. As a result of these adjustments, over time the number of chambers first decreased from three to two. Following, with the decision given on 7 July 2020, merger of the chambers of the Supreme Court that were only responsible for coping with labour cases was decided. With the aforementioned decision, the 22nd Civil Chamber of the Supreme Court (jurisdiction is mainly Ankara) and the 9th Civil Chamber of the Supreme Court (jurisdiction is mainly Istanbul) were merged within the structure of the 9th Civil Chamber of the Supreme Court as of 1 September 2020. Thus, the number of chambers coping with labour law disputes has become one again after years.

The merging of the labour law chambers of the Supreme Court is a very positive and decisive development in Turkish labour law, but also brought some problems to be solved. The most important of these is how to eliminate the interpretation differences of the closed chambers. As a matter of fact, there are differences among the principle decisions regarding certain issues, of the chambers of the Supreme Court that dealt with labour law cases prior to the merger. In the period before the merger, the labour law cases are evaluated according to the opinions of the labour law chamber of the Supreme Court of the city where the case is located. After the merger of the labour law chambers of the Supreme Court, it has become a great uncertainty to apply the opinions of which chamber to the case files that are ongoing or under the appeal examination in the Supreme Court. The Supreme Court seems to have resolved this uncertainty with a precedent decision dated 14 September 2020, referring to the principle ‘surprise decision ban’, which will pass into the history of Turkish labour law.

In our opinion, the purpose of the decision and the solution it aims to reach are remarkably important. According to the decision, in terms of the lawsuits that are still ongoing or under the examination of the Supreme Court, decisions will continue to be made by taking into account the decisions of the Chamber of the Supreme Court, which is affiliated with the city where the case is being held. Accordingly, the principle decisions made uniform after the merger of the chambers will be applied in the cases filed after 1 January 2021. With this decision, the Supreme Court prevented the negative and surprising reflection of the changes in the practice to the ones who filed lawsuits by relying on the decisions of the Supreme Court before the merger. This is the reason why the essence of the decision is the surprise decision ban. On the other hand, the Supreme Court clearly drew the boundaries of the practice by determining the time period in which this protection will be valid.

In terms of Turkish law, this decision is the first to generate the surprise decision ban principle. Thereby, the differences in principle among the chambers have been eliminated, uniformity has been ensured in Turkish Labour Law – where jurisprudence is of great importance, and the application of law in a single and equal distance to all has been maintained. This is crucial in terms of fundamental rights and principles such as legal certainty, legal predictability, legal security, fair trial and right to legal hearing. With this move, the Turkish judiciary and the practice of Turkish labour law seem to clearly show how much importance it attaches to the rule of law and the right to legal certainty. With this latest decision, which is the subject of our article, the trust function of the judiciary has been registered.