Constitutionality Review

Contested Provision

The first sentence of Provisional Article 23 § 5 of Decree Law no. 375, which includes the disputed phrase, stipulates that those transferred to permanent positions may be employed, provided that they satisfy the conditions set out in the first paragraph, to perform the services previously carried out under the procurement contract in the organisation and unit where they were employed prior to the transfer procedure. The relevant provision is contested in so far as it relates to the phrase “… in the organisation and unit where they are employed…”.

Ground for the Request for Annulment

It was maintained in brief that the contested provision categorically prevents the relocation of workers who were appointed to permanent worker positions, thereby precluding their reassignment to another province or region. As a result, judicial authorities are unable to review the employer’s managerial prerogative in decisions concerning requests for relocation. It was further submitted that the provision places workers employed under Provisional Article 23 of Decree Law no. 375 in a less secure position compared to other workers holding permanent positions, thereby violating the principle of equality. Therefore, the contested provision was claimed to be unconstitutional.

The Court’s Assessment

Article 49 of the Constitution provides a specific safeguard reflecting the State’s obligation, inherent in the principle of the social state, to protect employees in business life. In this regard, ensuring a fair balance in employment relations by introducing rules aimed at protecting the employee, who is the more vulnerable party to the employment contract, falls within the State’s positive obligations with regard to the right to work.

According to the contested provision, the workers in question may not be assigned outside the organisation and unit where they were employed prior to their transfer to permanent positions. In other words, it is not possible for the employer to accept requests for relocation submitted by such workers.

It is evident that there exists a private-law relationship between the institutions, organisations and administrations enumerated in the first paragraph of Provisional Article 23 and the workers transferred to permanent positions pursuant to the relevant provision. Thus, the aforesaid entities act in the capacity of employers. During the period of their employment in such positions, changing circumstances may bring about relocation requests by these workers. In general terms, the assessment of such requests falls within the scope of the employer’s managerial prerogative under labour law.

Pursuant to the relevant provisions of the Turkish Civil Code no. 4721 and the Turkish Code of Obligations no. 6098, the employer is necessarily expected to exercise its managerial prerogative in relation to the relocation issues in accordance with the principle of good faith and to exercise due diligence with respect to the employee in any decision taken in this regard. Therefore, where operational conditions such as workload and staff capacity allow, an employer may grant relocation requests based on reasonable grounds.

Moreover, in disputes arising from the rejection of relocation requests submitted by workers employed in public institutions, organisations and administrations, judicial authorities are authorised to review whether the employer has exercised its managerial prerogative in compliance with the principle of good faith and the duty of care. Indeed, according to the case-law of the Court of Cassation, while courts cannot issue enforceable orders, such as directly ordering a relocation or annulling the employer’s decision, they may determine whether the impugned act is lawful. Thus, it is evident that the employee has a legitimate interest in seeking such a determination (see the Court of Cassation’s decision, 9^th Civil Chamber, no. E.2024/14198, K.2025/1316, 10 February 2025).

However, the contested provision precludes relocation of workers transferred to permanent positions under Provisional Article 23, regardless of the circumstances. In other words, it introduces an absolute prohibition on any change of workplace.

Although the provision was intended to prevent disruptions in the functioning of the relevant organisation or unit, it cannot be assumed that granting relocation requests would, in every case, lead to such disruption. The operational and staffing conditions of the relevant organisation or unit may well permit the accommodation of such requests.

Therefore, the Court has concluded that the contested provision, which precludes the assessment of relocation requests based on reasonable grounds within the framework of operational and staffing considerations, and which prevents judicial review of the lawfulness of the decisions taken in this respect, is incompatible with the State’s obligation to protect employees.

Consequently, the contested provision has been found unconstitutional and therefore annulled in so far as it concerns the disputed phrase.