The State has a positive obligation to intervene in cases of dismissal of employees due to their participation in trade unions.
JUDGMENT
Τek Gıda İş Sendikası v. Turkey 04-04-2017 (no. 35009/05)
SUMMARY
Participation in a trade union. Dismissal of workers, a positive obligation on the part of the state to prevent dismissals. The Turkish judicial authorities refused to recognize representative power in a trade union. This company did not lay off workers who were members of the trade union organization and did not meet the company’s requirement not to participate in it, under the threat of dismissal. Referring to Article 11, the applicant initially denounced the refusal of the domestic courts to recognize its representative power and secondly the fact that the relevant legislation and the courts had authorized the dismissal of workers. The Court considered that the State had breached its positive obligation to prevent the dismissal of company employees who had refused to cancel their membership of the trade union at the request of their employer.
PROVISION
Article 11
PRINCIPAL FACTS
The applicant trade union, Tek Gıda İş Sendikası, based in Istanbul, was founded in 1955. At the relevant time it represented employees working in the food processing industry.
The case concerned the judicial authorities’ refusal to recognise the trade union’s representation in the Tukaş Gıda Sanayi ve Ticaret company and the dismissal of employees of the company who had refused to cancel their membership of the trade union at their employer’s request. In 2003 a number of employees in three factories belonging to the Tukaş Gıda Sanayi ve Ticaret
company joined the applicant trade union. In February 2004 that trade union asked the Ministry of Labour and Social Security to establish its representation so that it could conclude, on behalf of its members, collective labour agreements with the company in question. By decision of 26 May 2004 the Ministry acceded to that request and validated the trade union’s representation.
The Tukaş company lodged an application to set aside that decision with the 3rd Labour Court of İzmir. By judgment of 2 December 2004 the court, hearing and determining on the basis of an expert report, acceded to that application on the grounds that the trade union had too few members to be considered sufficiently representative. The trade union appealed to the Court of Cassation, which dismissed its appeal on points of law on 22 March 2005.
Meanwhile, the Tukaş company had invited employees who were members of that trade union to cancel their membership on pain of dismissal; forty employees refused and were dismissed on
redundancies or for professional shortcomings. On different dates the employees in question appealed to the İzmir Labour Courts against their wrongful dismissal, demanding their reinstatement
in the company. By various judgments delivered between July and December 2004, the courts ordered the Tukaş company to reinstate the employees whom it had dismissed, or else to pay them
compensation for wrongful dismissal. The Court of Cassation upheld those judgments. None of the employees were reinstated. The Tukaş company paid them the compensation ordered by the courts.
THE DECISION OF THE COURT
Relying in particular on Article 11 (freedom of assembly and association), the applicant trade union complained, first of all, about the domestic courts’ refusal to recognise its representation as a
precondition for collective bargaining within a company, which the union submitted had been a result of an erroneous calculation of the number of union members on the staff of Tukaş, and
secondly, about the fact that the relevant legislation and the courts had not prevented the company from eradicating trade unions from its workplaces by means of wrongful dismissals.
No violation of Article 11 – concerning the refusal to recognise the applicant trade union’s representation
Violation of Article 11 – on account of the fact that the State had failed to fulfil its positive obligation to prevent the employer from dismissing all the employees who were members of the
applicant trade union by means of wrongful dismissals
Just satisfaction: EUR 10,000 (non-pecuniary damage) and EUR 8,500 (costs and expenses)
