Article 5 of the International Labor Organization’s Termination of Employment Convention, 1982 (No. 158) lists five reasons that are not considered justified for terminating an employment contract. Four of these are listed in Article 26(2) of the Proclamation as follows:
a) The employee’s membership in a trade union or participation in lawful trade union activities.
b) The employee’s seeking or serving as an employee representative.
c) The employee’s lodging a complaint against the employer or participating in a suit filed in court or other claims.
d) The employee’s nationality, sex, religion, political opinion, marital status, race, color, family responsibilities, lineage, pregnancy, or social status.
The reason mentioned in Article 26(2)(d) as “pregnancy” in general terms is listed as a fifth reason in Article 5 of the Convention as “absence from work during maternity leave.” Our country’s law provides greater protection for pregnant employees than the Convention. This is because, including absence from work due to pregnancy leave, other reasons based on pregnancy are not considered competent and sufficient reasons for terminating an employment contract.
This stance of the law is explained and stipulated in Article 87, sub-articles 6 and 7. Accordingly, a female employee cannot be dismissed during pregnancy and within four months from the date of childbirth, except for misconduct (Article 27(a)-(t)) or redundancy (Article 29(3)). In other words, dismissal for the reasons for contract termination listed in Article 28(1) is prohibited during the specified period.
Although the law’s protection is broad, the absence of an indicative provision on the transferability of maternity leave inevitably raises challenging legal questions. Suppose a pregnant woman gives birth without taking her pre-natal leave, and after childbirth, she is dismissed from work for being absent for the unused period (e.g., for one month). Can her dismissal be deemed unlawful?
The Cassation Bench, in Supreme Court File No. 121063 (Appellant Teacher Mulunesh Melesse and Respondent Walia General Primary School, February 24, 2008 E.C., Vol. 20), gave an affirmative answer to the question. In this file, the appellant gave birth without taking pre-natal leave. After taking and completing her 60 days of post-natal leave protected by Article 88(3) of Proclamation No. 377/96, she was using the 30 days of maternity leave she could have used during the pre-natal period when the respondent terminated her employment contract, stating that she was “not present at work.”
To determine the legality of the termination, it was first necessary to reach a definitive conclusion on whether pre-natal leave can be transferred to post-natal leave. The court, instead of reaching a definitive stance on this matter, preferred to state the problem as follows:
“Although the law stipulates that the period of pre-natal and post-natal leave protected for a woman due to pregnancy is known, the law does not explicitly state whether a female employee who did not use the protected leave period during the pre-natal period can use the same period during the post-natal period.”
The court, based on this idea, pointed out that the respondent failed to prove that “the appellant’s dismissal from work was related to discipline or redundancy procedures,” and thus rendered the dismissal unlawful. However, the analysis shows a clear contradiction. Without reaching a clear conclusion on whether “a female employee who did not use the protected leave period during the pre-natal period can use the same period during the post-natal period,” it is not possible to determine the legality of the dismissal.
If she cannot use it, the dismissal does not raise an argument about being related to discipline (for absence from work is a disciplinary matter). Conversely, if she can use it, it will not be a disciplinary reason falling under Article 27. Therefore, although the court criticized the respondent for failing to prove that “the dismissal was related to discipline,” the court itself did not prove whether it was related or not.
Why were Article 5 of the Termination of Employment Convention and Article 26 of the Proclamation necessary? Since it is clear that all reasons other than those listed as sufficient reasons in the law are not justified reasons for terminating an employment contract, what is the purpose of listing them as “unjustified reasons”? The objective of both the Convention and the Proclamation is to provide greater protection for fundamental employee rights and to eliminate discriminatory practices in the workplace.
Therefore, an employee dismissed for the reasons mentioned receives greater protection in each country. This can be stipulated in law by increasing the amount of compensation payable or by requiring unconditional reinstatement. Our country’s law, while not differentiating in the amount of compensation, unconditionally protects the right to reinstatement for an employee dismissed for the reasons listed in Article 26(2).
If an employer terminates an employment contract for the reasons mentioned, it has an obligation to reinstate the employee to work. The existence of this obligation, by itself, protects the employee from being dismissed with compensation unless it is by their own will.