Individual Application

The Facts

The union of which the applicant was a member decided to embark on a strike in January 2015. Nevertheless, the Council of Ministers postponed the strike. Following the postponement decision, all workers including the applicant working in the defendant workplace organised slowdown strikes for 20-25 minutes a day. Subsequently, the defendant workplace terminated the employment contracts of thirty workers including the applicant.

In the action brought by the applicant requesting the reinstatement and the awarding of union compensation, the labour court partially accepted the case and ruled on the reinstatement of the applicant but dismissed the request for union compensation. The first-instance decision was quashed by the Court of Cassation on the grounds that the applicant had gone on a strike despite the decision postponing the said strike, and the case was dismissed with final effect.

The Applicant’s Allegations

The applicant maintained that his right to trade-union freedom was violated due to the termination of the employment contract on the grounds of his participation to slowdown strikes despite the decision of the Council of Ministers postponing the strike decided by the union.

The Court’s Assessment

In consideration of the importance of the right to strike safeguarded by the Constitution, the grounds for restricting/compelling this right must be convincingly and clearly demonstrated. Otherwise, the exercise of the constitutional right to strike and enter into collective bargaining would be rendered de facto dysfunctional. In this context, short-term protests in the nature of the exercise of democratic rights against practices affecting economic, social and working conditions of workers should be tolerated. In the present case, the Court of Cassation only stated that the applicant had engaged in an unlawful act and his employment contract had been terminated due to valid cause based solely on the existence of the decision postponing the strike. Nevertheless, it did not provide any further assessment in this regard.

As the strike in which the applicant took part was of a short-term and peaceful nature, which aimed at expressing disagreements regarding the collective labour agreements, the strike in question should be considered to fall under the right to trade-union freedom. In addition, it should be also considered how long the employer must endure the impugned strike. According to the findings of the first instance court, all workers engaged in work slowdowns lasting 20-25 minutes for eleven days, which did not cause irreversible damage for the employer. The employer terminated the employment contracts of thirty workers for causing loss of production. However, as underlined both by the first instance court and the Court of Cassation, the employer failed to provide any explanation as to how it  picked out the thirty workers it dismissed. Furthermore, the employer did not elaborate on the issues such as the applicant's position in the workplace, the reason for his participation in the work slowdowns, the burden of the strike on the employer, and whether the applicant’s participation had an impact on other workers. In this respect, the employer failed to demonstrate that the applicant's actions went beyond the exercise of his democratic rights. Yet, the applicant had to face a severe consequence and lost his job due to his impugned act in the form of exercising his right to trade-union freedom. Accordingly, it is explicit that the principle of resorting to termination of contracts as the last resort, developed by the Court of Cassation, be necessarily applied to these types of labour cases for the protection of fundamental rights and freedoms. However, it has been observed that the principle of resorting to termination of contracts as the last resort was not taken into account in the present case.

In light of above-mentioned explanations, the Court has concluded that the employer’s interference with the applicant's right to trade-union freedom would create a chilling effect for him and others in exercising union-related rights and that the state failed to fulfil its positive obligations due to the lack of an effective judicial review conducted by the instance courts as required by the said constitutional right.

Consequently, the Court has found a violation of the right to trade-union freedom.