Foreign Academics

Av. Ali Yurtsever

I. Legal Standing of Foreign Academics in Turkey

The legal standing of academic personnel (and foreign academics) employed in universities have been the subject of long-standing debates, mainly due to the conflicting decisions and precedents issued by the higher courts (Court of Appeals and the Council of State). The main issue with this debate was (and to a certain extent still is) whether the Labor Law or the Administrative Judicial Procedure Act shall be applicable to disputes arising from the employment of academic personnel in Turkish universities. The answer to this question has profound effects on the employment relationships between universities and academic personnel and on the claims academic personnel can bring forth before a court in case of wrongful dismissal.

Unfortunately, the answer to this problem is complicated as the higher courts issued contradicting judgments to separate cases in the past. To briefly summarize, until 2012, it was accepted that employment of academic personnel in universities, whether state or foundation (universities not owned and administered by the state are established as foundations) shall be governed by the Labor Law and that Labor Courts shall jurisdiction over any dispute arising out of the employment relationship (as per the relevant high court precedents at the time).

However, this approach was changed following a judgment issued by the Dispute Resolution Court back in late 2012, where the court completely shifted its view and ruled that although Labor Law still applies to employment contracts and employment benefits of academic personnel, the authorized courts for disputes arising out of those contracts shall be Administrative Courts. This 2012 decision is still in effect, as the court did not change its views again until today. So currently, although the Labor Law provisions will apply to academic personnel, including foreign academic personnel, and their employment in both state and foundation universities, disputes arising out of these employment relationships will need to be settled before Administrative Courts, instead of Labor Courts (if they cannot be settled amicably).

II. Wrongful Dismissal of Foreign Academics & Possible Claims

The issues briefly summarized above, and the relevant high court precedents are especially important in cases of wrongful early termination of foreign academics, as it directly affects the rights foreign academics can claim with a lawsuit.

Typically in a standard employment relationship (subject to Labor Law), wrongfully dismissed employees will have a couple of options, depending on the length of the work time within the relevant company and the size and total employee count of the company (a brief summary regarding the criteria applied in determining the rights of employees can be viewed in one of our previous articles here). These options include filing for a compensation claim, (severance pay, unused paid leave days compensation, notice compensation, moral compensation, etc.) or filing for a reinstatement claim, where the employee asks to be reinstated to the same work and/or position previously held at the company. Whereas the rights a foreign academic can claim in cases of wrongful dismissal are slightly different.

a. Reinstatement Claims

The first thing to note about reinstatement is that a reinstatement claim can only be brought before a Labor Court, as there is no procedure established in Administrative Courts for the reinstatement of an officer. Since disputes arising from employment relationships between universities and foreign academics need to be heard at Administrative Courts, it will not be possible for foreign academics to claim for reinstatement in cases of wrongful termination.

With that said, it should also be noted that although Labor Law applies to the employment contracts and benefits of foreign academics, universities (both state and foundation) are deemed as administrative bodies, and their actions are considered administrative actions. As such, a lawsuit for the annulment of administrative actions can always be filed against all administrative actions/decisions of a university. Considering that a university will need to issue an administrative decision to terminate the employment contract of a foreign academic, it is technically possible for a foreign academic to file a lawsuit for the annulment of the relevant administrative action, which if successful, will annul the decision of termination and effectively reinstate the academic to his/her work.

Unfortunately, this is not a very practical approach, as an annulment claim will be specific to each action, meaning a separate lawsuit will need to be filed for each separate administrative action taken by the university. This means that the university can always issue a new administrative decision for termination, if the prior decision/action is annulled by the court, and the foreign academic will need to file separate lawsuits for each action every time.

b. Compensation Claims

In terms of compensation claims, the rights of a foreign academic are mostly similar to a standard employment relationship, due mainly to the fact that Labor Law provisions are still applicable to the employment contract itself and in determining the employment benefits of the academic personnel. Therefore, a foreign academic can claim the standard compensation amounts, including severance pay, payment of unused paid leave days, unpaid salary amounts and moral compensation, etc.

One notable difference, however, is the fact that employment contracts of academic personnel are drafted with a time limit (with a definite term), as opposed to the standard indefinite term employment contracts. As a general rule, the Labor Law states that all employment contracts are indefinite term contracts, with a few exceptions that allow for the signing of definite term contracts (so in most cases, even if the contract itself states a definite term, the provision setting the definite term will be deemed invalid and the contract will be deeded as an indefinite contract unless it benefits from the relatively few exceptions provided by the law), and employment of academic personnel is one of those exceptions, due to the requirements of the Higher Education Council (YOK).

In a definite term employment contract, the term of employment is set from the beginning, so the employee undertakes to work for a specific period and the employer undertakes to pay the total salary corresponding to the work duration. This is particularly important as in cases of wrongful terminations of definite duration employment contracts, it will be possible for the employee to claim for his/her full salary corresponding to the time remaining on the employment contract. Since universities tend to sign 2- or 3-year employment contracts with foreign academic personnel depending on their field of study and YOK restrictions/requirements, the foreign academic personnel may have grounds to claim his/her full salary until the end of the contract term, in case of wrongful early termination. However, this will undoubtedly depend on the specifics of each case and the terms and conditions noted within the relevant employment contract signed with the university.

III. Conclusion

The legal frameworks and court precedents governing the employment relationship of foreign academics are slightly more complex than those governing standard employment contracts. As such, we highly recommend any foreign academic facing an unjust early termination seek assistance from professionals in order to adequately assess their rights and possible claims they can bring forth against their universities. It should also be noted lawsuits, particularly administrative ones, may take around 1 to 2 years to finalize. To save time and court expenses, it may also be a good idea to use alternative dispute settlement procedures (such as mediation) first and move forward with the lawsuits if the dispute cannot be settled via alternative means.

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