09/03/2023

The concept of organic link and the effect of termination of the employment contract in Turkey

organic link employment contract

In terms of the problems encountered in practice and the definitions made in the decisions of the Court of Cassation in Turkey, another issue that should be mentioned in the termination of the employment contract is the concept of organic link. The works and transactions carried out in accordance with this concept is one of the abuses of the principle of limited liability recognized for legal entities and necessitates the method of cross-removal of the legal entity within the scope of the theory of piercing/removal of the veil of legal entity. Thus, by determining the link between at least two legal entities or the main legal entity, it is possible to determine who or who is subject to what kind of liability for labour rights in the context of our subject matter.

The organic link finds its expression before the termination of the employment contract, while the employee is still working. It is essentially related to the transfer of the workplace. As stated in the decisions of the Court of Cassation, the organic link is the restriction of the contractual or legal rights of the employee or the prevention of the exercise of the rights by the legal entity, which has the title of employer, to include different personalities in the representation (against the employee or the court). Accordingly, the right to transfer the workplace is abused against the employee and is not expected to be protected by the law.

Organic link generally means that a legal entity transfers its workplace to another legal entity that has a very close connection with it in the context of restriction of labour rights.

Accordingly, the independence of the legal entity is limited and the legal entity is considered identical to the person with whom it is organically linked.

Again, with the organic connection, it is also possible to abuse the right of legal entity, to cheat against the law, to prevent the employee from obtaining his rights, to make collusion on the side by showing another legal entity as the employer in the records although the employee provides his services to him, and to create a kind of pseudonym by hiding himself by showing another legal entity as the employer in the employment contract.

Here, it is seen that the principle that no one can benefit from their own collusion comes to the fore.

Another situation where there may be an organic connection other than the transfer of the workplace is that an employer who is probably financially inadequate employs the worker, but the worker actually provides his/her services to the employer who is hidden in the background and who is probably financially powerful. In such a case, the veil of legal personality is lifted and the main responsible employer is determined.

Based on the above paragraph, another organic link appears in the context of the employment of workers taken from Turkey for a job abroad. Here, it is important to determine the liability of the Turkish company for the receivables of Turkish workers employed by Turkish nationals through companies established by them together with foreign nationals or companies, according to the shareholding of the foreigner in the company. At this point, if it is understood that the partnership of the foreigner is not a real partnership, but only the fulfilment of a mere formality in order to do business in that country, this situation will be accepted as hiding behind the veil of legal entity against labour receivables, in other words, abuse of the right of legal entity.

In such a case, the real employer or the employers with organic ties must be identified and held responsible by revealing the relationship between the legal entities. The responsibility mentioned here will be subject to the principles of joint and several liability.

As can be seen, organic link is a type of relationship that is not recognised and protected by the law. Here, in any case, there is an abuse of the right of legal entity. There is an abuse of right. Since there is an abuse of the right, in almost all cases, the existence of an organic link will result in the failure to provide or protect certain labour rights.

When determining the organic link, the specific circumstances of each case will need to be evaluated. Nevertheless, the fact that the addresses, fields of activity, partners and representatives of legal entities are the same plays a role in the determination and interpretation of the legal relationship between them. It is also accepted as a criterion that the SSI registration number of the workplace never changes. Apart from these, it should be emphasised that it is important that the employee has always spent his/her service in the same workplace.

The organic link is not accepted as a subcontractor relationship despite the adoption of joint liability between legal entities and the transfer relationship. This is because, contrary to subcontracting, there is no subcontracting of a part of a certain work to a subcontractor for technical reasons or subcontracting of an auxiliary work to a subcontractor in organic linking.

On the other hand, although the employee serves employers who have a close relationship with each other in the same workplace, the organic link also differs from the concept of co-employment. Because the organic link also differs from the concept of co-employment. Because, contrary to co-employment, the worker is not expected to serve more than one employer at the same time. In the case of organic linking, the worker often provides services to employers who change due to the transfer relationship.

Concretely, the organic link manifests itself when the worker has continuously served for example for three legal entities in the same workplace and in the same workplace, and the employment contract is terminated in a way to be entitled to severance pay and similar benefits, the court determines the employer who concealed himself/herself with the organic link and holds this employer responsible for the entire period of service, regardless of which employer is taken as a party despite the change of employers.