The paper argues that "In the aftermath of the COVID-19 pandemic, it is critical in our pursuit o... more The paper argues that "In the aftermath of the COVID-19 pandemic, it is critical in our pursuit of a fair, diverse, inclusive, and sustainable economic recov- ery to evaluate and continually rethink dismissal protection policies. At this historic moment, a stronger commitment to maintaining a harmonious balance between employers and workers in the world of work is needed. This balance is essential not only to protect vulnerable and disadvantaged workers, but also to uphold the principles of social justice."
Kasım, Ceren, ‘Protecting Workers in Uncertain Times: Theoretical Foundations of Dismissal Protection’, in: Improving Working Conditions in Platform Work in the Light of the Recent Proposal for a Directive, Ed. Bellomo, Stefano / Mezzacapo, D. / Ferraro, F. / Calderara D., Sapienza Università Editrice, 2023, p. 199 – 224.
The article delves into the connection between the surge in gender-based domestic violence cases,... more The article delves into the connection between the surge in gender-based domestic violence cases, often referred to as the 'shadow pandemic,' and the widespread adoption of remote work from home amid the COVID-19 pandemic.
It argues that remote working in the home office blurs the so-called distinction between public/private and paid/unpaid work, by bringing public 'work' from the public sphere into the private sphere at home—into the castle of private 'non-work.'
The article concludes that, given the expected continuation of remote work after the pandemic ensuring adequate, human-centred protection against gender-based domestic violence, particularly against women, within the context of labour law is critical.
Kasım, Ceren, ‘Lockdowns and Domestic Violence: The Impact of Remote Work Regulations on Women Workers in Türkiye During the COVID-19 Pandemic’, in: Work Beyond the Pandemic. Towards a Human-Centred Recovery, Ed. Addabbo, Tindara /Ales, Edoardo / Curzi, Ylenia / Fabbri, Tommaso / Rymevich, Olga / Senatori, Iacopo, palgrave macmillan, Springer, 2023, S. 191-211.
Minority Recognition and the Diversity Deficit, 2022
Antidiscrimination law and dismissal protection law found some common ground in the case of discr... more Antidiscrimination law and dismissal protection law found some common ground in the case of discriminatory dismissal at the beginning of the 2000s when Germany, a state with a strong tradition of unfair dismissal, adopted EU non-discrimination directives due to EU membership. Meanwhile, in Turkey, the legislator was adopting EU non-discrimination directives to harmonise Turkish law with EU law within the EU accession process, align Turkish labour law with international law, and introduce dismissal protection law by ratifying ILO Convention No 158. In the case of a discriminatory dismissal, antidiscrimination law and dismissal protection law intersect; which one of them – or both – should regulate this conflict and to what extent became a persisting theme in legal scholarship. The paper argues that employees from socially disadvantaged groups affected by discriminatory dismissals must not be deprived of the protection offered either by antidiscrimination law or by the law of dismissal. While both antidiscrimination law and the law of dismissal are primarily concerned with socially existing power imbalances, the truth is that their historical roots, justifications, and objectives differ significantly.
The paper aims to shed light on the underlying theoretical rationales and aims of antidiscrimination and dismissal protection law in the context of labour law, considering the principles of equality in relation to social groups. The paper begins with reflections on antidiscrimination law, starting from processed-based approaches. Then, assessing legal chances for social groups emerging from result-based approaches, continues with critical remarks on equality of opportunities, finally closing the discussion from the perspective of different identities and social groups. The second part addresses dismissal protection law as a tool of social justice. To this end, the different power positions of the parties to the employment contract and the role of the law of dismissal in balancing power imbalance are examined, and the protection of the dignity and livelihood of the employee through dismissal protection is then addressed. Furthermore, freedom of occupation is considered with respect to the maintenance of the existing employment relationship as a goal of dismissal protection law. This is followed by a discussion of the welfare state and its role in the employment relationship. As a conclusion, the paper focus on the essential differences between these two fields of law – antidiscrimination law and dismissal protection law.
Remote Work and Domestic Violence Against Women, 2022
After the outbreak of the pandemic, many companies in Turkey either started or continued to work ... more After the outbreak of the pandemic, many companies in Turkey either started or continued to work remotely and many of them aim to make remote work permanent in the post-pandemic period. Remote work, once a luxury of high-skilled employees, is becoming more common across the entire labor market. As large numbers of workers were instructed to work remotely from home-offices during the pandemic, reported domestic violence cases against women increased. Women have been treated as collateral damage in the ongoing fight against the pandemic. Given the expectation that remote work will remain commonplace once the pandemic is over, it is of great importance for the sake of women workers to provide sufficient protection against domestic violence. Turkish Remote Work Regulation is grounded in a mutual agreement between the employer and the employee, and it favors flexibility for employers over security for employees, it also overlooks the specific needs of women workers, including protection for domestic violence victims. Turkish National Act on the Protection of the Family and the Prevention of Violence against Women contains, promisingly, regulations regarding women workers, but it has not proved sufficient in providing the necessary protections. In order to meet the needs of women in an unequally organised work environment and for the realisation of not only de jure but also de facto equality between women and men in the world of work, new approaches are required.
CONCLUSION: The pandemic crisis has both highlighted and exacerbated social inequalities in the world of work, including for women now working remotely in Turkey. Neither the indi- vidual needs of women nor the needs of women workers as a group have been considered during this unique period. At the same time as violence against women has increased, le- gal regulations have not proved sufficient in providing the necessary protections. Instead, women have been treated as collateral damage in the ongoing fight against the pandemic. The next steps will be crucial. In the context of Turkish law, Act on the Protection of the Family and the Prevention of Violence against Women, occupational health and safety measurements according to the Remote Work Regulation and trade unions role in gender equality could be a promising tool in the fight against domestic violence against women. However, in order to meet all the needs of women in an unequally organised work en- vironment and for the realisation of not only de jure but also de facto equality between women and men in the world of work, new approaches are required. Such approaches should address the specific needs of women workers as a group in light of the complex and intersectional nature of the discrimination they experience.
Can the existing international labour law protections also potentially protect workers, employees... more Can the existing international labour law protections also potentially protect workers, employees or independent contractors working in new forms of work? The aim of this paper is to discuss this question in terms of the meaning of International Labour Organization (ILO) law in the context of discriminatory dismissal from a comparative perspective, namely by comparing German and Turkish law. Indeed, there are already existing protections according to ILO norms which are applicable to all people under employment relationship or occupation regardless of their legal status as employees or independent contractors. Protection against discrimination is one of them; this protection is also the main topic of this chapter.
CONCLUSION:
The ILO system is based on the responsibility of individual states. So, its reach is limited, not only in terms of standard-setting activity or the low rate of ratification, but also in view of the weakness of its supervisory mechanisms and the lack of effective sanctions. However, with respect to Turkish industrial relations and the Turkish legal system, these limited monitoring mechanisms are more frequently used com- pared to Germany. The ILO’s tripartite system allows social parties to seek support from the ILO mechanisms, even if they are poorly enforceable. They serve as a place to make the voice of the others heard, whose voices cannot be heard in the national systems for various reasons. It is a place where they can express themselves, seek support and demand their rights are met.
After the outbreak of COVID-19, and especially after it spread around the world and the WHO decla... more After the outbreak of COVID-19, and especially after it spread around the world and the WHO declared a pandemic, the Turkish authorities imposed drastic restrictions on everyday life, in order to slow down and/or stop any further spread of the virus. Although neither a national health emergency nor a state of emergency was declared, citizens' fundamental freedoms and rights were restricted in severe ways. Strict limitations on the freedom of movement in order to prevent the spread of COVID-19 were put in place in the country. Counted among these are the termination of all international flights, the closure of border crossings, the requirement for permission for inter-city travel and restrictions on entering and leaving cities with a higher population. Besides, some cities and villages are in quarantine to prevent the spread of the virus. Particular mention should be made of a total curfew that has been imposed on those aged 65 years and above, those aged 20 years and below, and those who are chronically ill. Health workers, mayors, provincial directors, officers in social services institutions, public servants are exempted from the curfew imposed on people aged 65 and over. Furthermore, public employees, employees in the private sector and seasonal agricultural workers between the
New Industrial Relations in the Era of Globalization, 2019
The paper investigates how workers are protected against anti-union dismissals in Turkey and give... more The paper investigates how workers are protected against anti-union dismissals in Turkey and gives an overview of the legal norms and jurisdiction on this issue with reference to existing labour relations in the country. In Turkey, only 12.76% of formal workers are unionized. Collective bargaining agree- ments cover 6.5% of workers, and trade union members not covered by a collective contract make up 33.7% of all trade union members. The low level of union density and the collective agreement coverage rate of trade union members make effective protection against anti- union dismissal more important and crucial since such protection guarantees members’ rights to organize and perform collective bargaining and ensures their freedom of association. After a brief overview of collective labour relations in Turkey, the Turkish system of protection against anti-union dismissal is examined based on its possible positive or negative effects on workers’ rights, with the institutions of trade union activity, lawful and unlawful strike and strike postponement positioned at the center of the analysis.
CONCLUSION:
Understanding all the workers who fall within the scope of the protection against union-related dismissal, without making any distinction between workers, employees or the others strengthens the right to be protected against anti-union dismissal in Turkey. The detailed jurisdiction on the grounds constituting union-related dismissal grounds, and those that are not, give in their own way a kind of predictability to social partners. But the narrow interpretation of trade union activity, specially the narrow interpretation of strikes and protection for only lawful strikes within the protection against anti-union dismissal, even if there are very few possibilities of lawful strikes and too many restrictions on the right to strike, arouse concern. Moreover, giving the reinstatement decision only to the employer, denying giving this entitlement also to workers injures the meaning of reinstatement and, generally, the meaning of protection against anti-union dismissal.
Dokuz Eylül Üniversitesi Hukuk Fakültesi Dergisi, 2013
Trotz ihres geringeren Anteils gesamten Arbeitsmarkt steht die Arbeitnehmerüberlassung seit der N... more Trotz ihres geringeren Anteils gesamten Arbeitsmarkt steht die Arbeitnehmerüberlassung seit der Novellierung des Arbeitnehmerüberlassungsgesetzes im Jahr 2002 im Brennpunkt der arbeitsrechtlichen Debatte in Deutschland. Das erste Gesetz fur moderne Dienstleistungen am Arbeitsmarkt vom 23.12.20024 verbreitete eine weitgehende Liberalisierung in der Branche der Abreitnehmeruberlassung. Die Novellierung brachte eine Flexibilisierung der Arbeitnehmeruberlassung, damit der Niedriglohnsektor an die Bedurfnisse der globalen Okonomie angepasst werden konnte. Daher wurde die Arbeitnehmeruberlassung aus dem Jahr 2002 mit der Flexibilisierung der Leiharbeit im Mittelpunkt des Gesetzes dereguliert. Diese Deregulation enthalt nicht nur die Aufhebung der Hochstuberlassungsdauer, sondern auch der besonderen Synchronisationsverbote, welche sich auf den Anwendungsbereich des Arbeitnehmeruberlassungsgesetzes auswirken.
ISLSSL XI European Regional Congress, Dublin , 2014
A new area of protection of the employees has been presented within the last ten years in Germany... more A new area of protection of the employees has been presented within the last ten years in Germany and in Turkey. This is the protection against discrimination. While the protection against discrimination may not have been a new subject for politics, it was so for the law of both countries (except for discrimination based on gender). As with all new subjects, the protection against discrimination brought up new questions with. One of them was how this protection related to other protections in labor law. Especially to the provisions of the protection of employee against unfair dismissal of employer.
In both German and Turkish labor law the employees are protected against unfair dismissal. During the legislative procedure for new regulations about antidiscrimination law in Germany, it became questionable what protection to apply in case of a discriminatory dismissal. Discussions ended up with the acceptance of Allgemeines Gleichbehandlungsgesetz (AGG) (General Act on Equal Treatment) § 2 (4). According to AGG § 2 (4) only the provisions governing the protection against unfair dismissal in general and specific cases shall apply to a case of discriminatory dismissal. Turkish legislation, on the other hand, did not answer the question directly. In 2003 enacted new Turkish Labor Act No. 4857 (4857 sayılı İş Kanunu) (IK No. 4857) on the other hand was regulated according to the antidiscrimination law but without any direct assignment about the case of a discriminatory dismissal.
Here are the questions I would like to address: What are the objectives of the antidiscrimination law and the law governing protection against unfair dismissals? How is the relationship between them? How are the employees protected against discrimination and against unfair dismissal by labor law of the both countries? How do both systems handle the problem of discriminatory dismissal of employer? What can be learned from the other law system (German or Turkish respectively)? In case of a discriminatory dismissal of employer, the discriminatory action of the employer and the dismissal of the employer must be regarded differently. Employer's discriminatory action (in this case, dismissal) should be considered within the framework of the rules governing anti-discrimination law. Employer's dismissal should be treated in accordance with the provisions governing the termination. In case that a discriminatory dismissal is also unfair: This means that the employer on the one hand commits a discriminatory action in form of a dismissal. On the other hand he dismissed the employer unfair. The employer violates both the regulations of the anti-discrimination law and the provisions of the protection against unlawful dismissal. Objectives of the anti-discrimination law and the law governing protection against unfair dismissals are different.
This work provides an overview of the interplay between anti-discrimination law and dismissal pro... more This work provides an overview of the interplay between anti-discrimination law and dismissal protection law, with a specific emphasis on international law as well as German and Turkish national law. Theoretical foundations are explored, including the development, goals, and criticisms to anti-discrimination and dismissal protection laws. Concepts such as equality, equal opportunities, diversity, group identities, and intersectionality are analysed, with attention given to the tension that arises between these ideas and concepts such as freedom of contract and bipartite relations under the effect of conflict of interests. The study then examines international labour law, specifically the International Labour Standards (ILS) of the International Labour Organisation (ILO), as well as supranational European labour law, in relation to protection against discriminatory employer terminations. The comparison of the legal systems of Germany and Türkiye concerning anti-discrimination and employment protection law is the main focus of the research, with a particular emphasis on the interplay between the two legal areas that arise in cases of discriminatory termination.
Throughout the study, the interaction between international labour law, specifically the International Labour Standards of the International Labour Organisation, and German law, and its influence on the development of Turkish law, are discussed. The origins of international labour law are traced, from the United Nations Charter to the International Covenants on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights, to understand how they have influenced national regulations. The International Labour Organisation Conventions, including the Declaration of Philadelphia and the International Labour Standards, play a significant role in the analysis, with specific attention given to ILO Equal Remuneration Convention No.100, ILO Discrimination (Employment and Occupation) Convention No. 111, and ILO Termination of Employment Convention No. 158.
Kasım, Ceren, Antidiskriminierungsrecht versus Kündigungsschutzrecht. Der Schutz vor der diskriminierenden Kündigung im deutsch-türkischen Rechtsvergleich, Schriften zum Recht der Arbeit, Peter Lang Verlag, 2023, 666 Seite.
The paper argues that "In the aftermath of the COVID-19 pandemic, it is critical in our pursuit o... more The paper argues that "In the aftermath of the COVID-19 pandemic, it is critical in our pursuit of a fair, diverse, inclusive, and sustainable economic recov- ery to evaluate and continually rethink dismissal protection policies. At this historic moment, a stronger commitment to maintaining a harmonious balance between employers and workers in the world of work is needed. This balance is essential not only to protect vulnerable and disadvantaged workers, but also to uphold the principles of social justice."
Kasım, Ceren, ‘Protecting Workers in Uncertain Times: Theoretical Foundations of Dismissal Protection’, in: Improving Working Conditions in Platform Work in the Light of the Recent Proposal for a Directive, Ed. Bellomo, Stefano / Mezzacapo, D. / Ferraro, F. / Calderara D., Sapienza Università Editrice, 2023, p. 199 – 224.
The article delves into the connection between the surge in gender-based domestic violence cases,... more The article delves into the connection between the surge in gender-based domestic violence cases, often referred to as the 'shadow pandemic,' and the widespread adoption of remote work from home amid the COVID-19 pandemic.
It argues that remote working in the home office blurs the so-called distinction between public/private and paid/unpaid work, by bringing public 'work' from the public sphere into the private sphere at home—into the castle of private 'non-work.'
The article concludes that, given the expected continuation of remote work after the pandemic ensuring adequate, human-centred protection against gender-based domestic violence, particularly against women, within the context of labour law is critical.
Kasım, Ceren, ‘Lockdowns and Domestic Violence: The Impact of Remote Work Regulations on Women Workers in Türkiye During the COVID-19 Pandemic’, in: Work Beyond the Pandemic. Towards a Human-Centred Recovery, Ed. Addabbo, Tindara /Ales, Edoardo / Curzi, Ylenia / Fabbri, Tommaso / Rymevich, Olga / Senatori, Iacopo, palgrave macmillan, Springer, 2023, S. 191-211.
Minority Recognition and the Diversity Deficit, 2022
Antidiscrimination law and dismissal protection law found some common ground in the case of discr... more Antidiscrimination law and dismissal protection law found some common ground in the case of discriminatory dismissal at the beginning of the 2000s when Germany, a state with a strong tradition of unfair dismissal, adopted EU non-discrimination directives due to EU membership. Meanwhile, in Turkey, the legislator was adopting EU non-discrimination directives to harmonise Turkish law with EU law within the EU accession process, align Turkish labour law with international law, and introduce dismissal protection law by ratifying ILO Convention No 158. In the case of a discriminatory dismissal, antidiscrimination law and dismissal protection law intersect; which one of them – or both – should regulate this conflict and to what extent became a persisting theme in legal scholarship. The paper argues that employees from socially disadvantaged groups affected by discriminatory dismissals must not be deprived of the protection offered either by antidiscrimination law or by the law of dismissal. While both antidiscrimination law and the law of dismissal are primarily concerned with socially existing power imbalances, the truth is that their historical roots, justifications, and objectives differ significantly.
The paper aims to shed light on the underlying theoretical rationales and aims of antidiscrimination and dismissal protection law in the context of labour law, considering the principles of equality in relation to social groups. The paper begins with reflections on antidiscrimination law, starting from processed-based approaches. Then, assessing legal chances for social groups emerging from result-based approaches, continues with critical remarks on equality of opportunities, finally closing the discussion from the perspective of different identities and social groups. The second part addresses dismissal protection law as a tool of social justice. To this end, the different power positions of the parties to the employment contract and the role of the law of dismissal in balancing power imbalance are examined, and the protection of the dignity and livelihood of the employee through dismissal protection is then addressed. Furthermore, freedom of occupation is considered with respect to the maintenance of the existing employment relationship as a goal of dismissal protection law. This is followed by a discussion of the welfare state and its role in the employment relationship. As a conclusion, the paper focus on the essential differences between these two fields of law – antidiscrimination law and dismissal protection law.
Remote Work and Domestic Violence Against Women, 2022
After the outbreak of the pandemic, many companies in Turkey either started or continued to work ... more After the outbreak of the pandemic, many companies in Turkey either started or continued to work remotely and many of them aim to make remote work permanent in the post-pandemic period. Remote work, once a luxury of high-skilled employees, is becoming more common across the entire labor market. As large numbers of workers were instructed to work remotely from home-offices during the pandemic, reported domestic violence cases against women increased. Women have been treated as collateral damage in the ongoing fight against the pandemic. Given the expectation that remote work will remain commonplace once the pandemic is over, it is of great importance for the sake of women workers to provide sufficient protection against domestic violence. Turkish Remote Work Regulation is grounded in a mutual agreement between the employer and the employee, and it favors flexibility for employers over security for employees, it also overlooks the specific needs of women workers, including protection for domestic violence victims. Turkish National Act on the Protection of the Family and the Prevention of Violence against Women contains, promisingly, regulations regarding women workers, but it has not proved sufficient in providing the necessary protections. In order to meet the needs of women in an unequally organised work environment and for the realisation of not only de jure but also de facto equality between women and men in the world of work, new approaches are required.
CONCLUSION: The pandemic crisis has both highlighted and exacerbated social inequalities in the world of work, including for women now working remotely in Turkey. Neither the indi- vidual needs of women nor the needs of women workers as a group have been considered during this unique period. At the same time as violence against women has increased, le- gal regulations have not proved sufficient in providing the necessary protections. Instead, women have been treated as collateral damage in the ongoing fight against the pandemic. The next steps will be crucial. In the context of Turkish law, Act on the Protection of the Family and the Prevention of Violence against Women, occupational health and safety measurements according to the Remote Work Regulation and trade unions role in gender equality could be a promising tool in the fight against domestic violence against women. However, in order to meet all the needs of women in an unequally organised work en- vironment and for the realisation of not only de jure but also de facto equality between women and men in the world of work, new approaches are required. Such approaches should address the specific needs of women workers as a group in light of the complex and intersectional nature of the discrimination they experience.
Can the existing international labour law protections also potentially protect workers, employees... more Can the existing international labour law protections also potentially protect workers, employees or independent contractors working in new forms of work? The aim of this paper is to discuss this question in terms of the meaning of International Labour Organization (ILO) law in the context of discriminatory dismissal from a comparative perspective, namely by comparing German and Turkish law. Indeed, there are already existing protections according to ILO norms which are applicable to all people under employment relationship or occupation regardless of their legal status as employees or independent contractors. Protection against discrimination is one of them; this protection is also the main topic of this chapter.
CONCLUSION:
The ILO system is based on the responsibility of individual states. So, its reach is limited, not only in terms of standard-setting activity or the low rate of ratification, but also in view of the weakness of its supervisory mechanisms and the lack of effective sanctions. However, with respect to Turkish industrial relations and the Turkish legal system, these limited monitoring mechanisms are more frequently used com- pared to Germany. The ILO’s tripartite system allows social parties to seek support from the ILO mechanisms, even if they are poorly enforceable. They serve as a place to make the voice of the others heard, whose voices cannot be heard in the national systems for various reasons. It is a place where they can express themselves, seek support and demand their rights are met.
After the outbreak of COVID-19, and especially after it spread around the world and the WHO decla... more After the outbreak of COVID-19, and especially after it spread around the world and the WHO declared a pandemic, the Turkish authorities imposed drastic restrictions on everyday life, in order to slow down and/or stop any further spread of the virus. Although neither a national health emergency nor a state of emergency was declared, citizens' fundamental freedoms and rights were restricted in severe ways. Strict limitations on the freedom of movement in order to prevent the spread of COVID-19 were put in place in the country. Counted among these are the termination of all international flights, the closure of border crossings, the requirement for permission for inter-city travel and restrictions on entering and leaving cities with a higher population. Besides, some cities and villages are in quarantine to prevent the spread of the virus. Particular mention should be made of a total curfew that has been imposed on those aged 65 years and above, those aged 20 years and below, and those who are chronically ill. Health workers, mayors, provincial directors, officers in social services institutions, public servants are exempted from the curfew imposed on people aged 65 and over. Furthermore, public employees, employees in the private sector and seasonal agricultural workers between the
New Industrial Relations in the Era of Globalization, 2019
The paper investigates how workers are protected against anti-union dismissals in Turkey and give... more The paper investigates how workers are protected against anti-union dismissals in Turkey and gives an overview of the legal norms and jurisdiction on this issue with reference to existing labour relations in the country. In Turkey, only 12.76% of formal workers are unionized. Collective bargaining agree- ments cover 6.5% of workers, and trade union members not covered by a collective contract make up 33.7% of all trade union members. The low level of union density and the collective agreement coverage rate of trade union members make effective protection against anti- union dismissal more important and crucial since such protection guarantees members’ rights to organize and perform collective bargaining and ensures their freedom of association. After a brief overview of collective labour relations in Turkey, the Turkish system of protection against anti-union dismissal is examined based on its possible positive or negative effects on workers’ rights, with the institutions of trade union activity, lawful and unlawful strike and strike postponement positioned at the center of the analysis.
CONCLUSION:
Understanding all the workers who fall within the scope of the protection against union-related dismissal, without making any distinction between workers, employees or the others strengthens the right to be protected against anti-union dismissal in Turkey. The detailed jurisdiction on the grounds constituting union-related dismissal grounds, and those that are not, give in their own way a kind of predictability to social partners. But the narrow interpretation of trade union activity, specially the narrow interpretation of strikes and protection for only lawful strikes within the protection against anti-union dismissal, even if there are very few possibilities of lawful strikes and too many restrictions on the right to strike, arouse concern. Moreover, giving the reinstatement decision only to the employer, denying giving this entitlement also to workers injures the meaning of reinstatement and, generally, the meaning of protection against anti-union dismissal.
Dokuz Eylül Üniversitesi Hukuk Fakültesi Dergisi, 2013
Trotz ihres geringeren Anteils gesamten Arbeitsmarkt steht die Arbeitnehmerüberlassung seit der N... more Trotz ihres geringeren Anteils gesamten Arbeitsmarkt steht die Arbeitnehmerüberlassung seit der Novellierung des Arbeitnehmerüberlassungsgesetzes im Jahr 2002 im Brennpunkt der arbeitsrechtlichen Debatte in Deutschland. Das erste Gesetz fur moderne Dienstleistungen am Arbeitsmarkt vom 23.12.20024 verbreitete eine weitgehende Liberalisierung in der Branche der Abreitnehmeruberlassung. Die Novellierung brachte eine Flexibilisierung der Arbeitnehmeruberlassung, damit der Niedriglohnsektor an die Bedurfnisse der globalen Okonomie angepasst werden konnte. Daher wurde die Arbeitnehmeruberlassung aus dem Jahr 2002 mit der Flexibilisierung der Leiharbeit im Mittelpunkt des Gesetzes dereguliert. Diese Deregulation enthalt nicht nur die Aufhebung der Hochstuberlassungsdauer, sondern auch der besonderen Synchronisationsverbote, welche sich auf den Anwendungsbereich des Arbeitnehmeruberlassungsgesetzes auswirken.
ISLSSL XI European Regional Congress, Dublin , 2014
A new area of protection of the employees has been presented within the last ten years in Germany... more A new area of protection of the employees has been presented within the last ten years in Germany and in Turkey. This is the protection against discrimination. While the protection against discrimination may not have been a new subject for politics, it was so for the law of both countries (except for discrimination based on gender). As with all new subjects, the protection against discrimination brought up new questions with. One of them was how this protection related to other protections in labor law. Especially to the provisions of the protection of employee against unfair dismissal of employer.
In both German and Turkish labor law the employees are protected against unfair dismissal. During the legislative procedure for new regulations about antidiscrimination law in Germany, it became questionable what protection to apply in case of a discriminatory dismissal. Discussions ended up with the acceptance of Allgemeines Gleichbehandlungsgesetz (AGG) (General Act on Equal Treatment) § 2 (4). According to AGG § 2 (4) only the provisions governing the protection against unfair dismissal in general and specific cases shall apply to a case of discriminatory dismissal. Turkish legislation, on the other hand, did not answer the question directly. In 2003 enacted new Turkish Labor Act No. 4857 (4857 sayılı İş Kanunu) (IK No. 4857) on the other hand was regulated according to the antidiscrimination law but without any direct assignment about the case of a discriminatory dismissal.
Here are the questions I would like to address: What are the objectives of the antidiscrimination law and the law governing protection against unfair dismissals? How is the relationship between them? How are the employees protected against discrimination and against unfair dismissal by labor law of the both countries? How do both systems handle the problem of discriminatory dismissal of employer? What can be learned from the other law system (German or Turkish respectively)? In case of a discriminatory dismissal of employer, the discriminatory action of the employer and the dismissal of the employer must be regarded differently. Employer's discriminatory action (in this case, dismissal) should be considered within the framework of the rules governing anti-discrimination law. Employer's dismissal should be treated in accordance with the provisions governing the termination. In case that a discriminatory dismissal is also unfair: This means that the employer on the one hand commits a discriminatory action in form of a dismissal. On the other hand he dismissed the employer unfair. The employer violates both the regulations of the anti-discrimination law and the provisions of the protection against unlawful dismissal. Objectives of the anti-discrimination law and the law governing protection against unfair dismissals are different.
This work provides an overview of the interplay between anti-discrimination law and dismissal pro... more This work provides an overview of the interplay between anti-discrimination law and dismissal protection law, with a specific emphasis on international law as well as German and Turkish national law. Theoretical foundations are explored, including the development, goals, and criticisms to anti-discrimination and dismissal protection laws. Concepts such as equality, equal opportunities, diversity, group identities, and intersectionality are analysed, with attention given to the tension that arises between these ideas and concepts such as freedom of contract and bipartite relations under the effect of conflict of interests. The study then examines international labour law, specifically the International Labour Standards (ILS) of the International Labour Organisation (ILO), as well as supranational European labour law, in relation to protection against discriminatory employer terminations. The comparison of the legal systems of Germany and Türkiye concerning anti-discrimination and employment protection law is the main focus of the research, with a particular emphasis on the interplay between the two legal areas that arise in cases of discriminatory termination.
Throughout the study, the interaction between international labour law, specifically the International Labour Standards of the International Labour Organisation, and German law, and its influence on the development of Turkish law, are discussed. The origins of international labour law are traced, from the United Nations Charter to the International Covenants on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights, to understand how they have influenced national regulations. The International Labour Organisation Conventions, including the Declaration of Philadelphia and the International Labour Standards, play a significant role in the analysis, with specific attention given to ILO Equal Remuneration Convention No.100, ILO Discrimination (Employment and Occupation) Convention No. 111, and ILO Termination of Employment Convention No. 158.
Kasım, Ceren, Antidiskriminierungsrecht versus Kündigungsschutzrecht. Der Schutz vor der diskriminierenden Kündigung im deutsch-türkischen Rechtsvergleich, Schriften zum Recht der Arbeit, Peter Lang Verlag, 2023, 666 Seite.
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Kasım, Ceren, ‘Protecting Workers in Uncertain Times: Theoretical Foundations of Dismissal Protection’, in: Improving Working Conditions in Platform Work in the Light of the Recent Proposal for a Directive, Ed. Bellomo, Stefano / Mezzacapo, D. / Ferraro, F. / Calderara D., Sapienza Università Editrice, 2023, p. 199 – 224.
It argues that remote working in the home office blurs the so-called distinction between public/private and paid/unpaid work, by bringing public 'work' from the public sphere into the private sphere at home—into the castle of private 'non-work.'
The article concludes that, given the expected continuation of remote work after the pandemic ensuring adequate, human-centred protection against gender-based domestic violence, particularly against women, within the context of labour law is critical.
Kasım, Ceren, ‘Lockdowns and Domestic Violence: The Impact of Remote Work Regulations on Women Workers in Türkiye During the COVID-19 Pandemic’, in: Work Beyond the Pandemic. Towards a Human-Centred Recovery, Ed. Addabbo, Tindara /Ales, Edoardo / Curzi, Ylenia / Fabbri, Tommaso / Rymevich, Olga / Senatori, Iacopo, palgrave macmillan, Springer, 2023, S. 191-211.
The paper aims to shed light on the underlying theoretical rationales and aims of antidiscrimination and dismissal protection law in the context of labour law, considering the principles of equality in relation to social groups. The paper begins with reflections on antidiscrimination law, starting from processed-based approaches. Then, assessing legal chances for social groups emerging from result-based approaches, continues with critical remarks on equality of opportunities, finally closing the discussion from the perspective of different identities and social groups. The second part addresses dismissal protection law as a tool of social justice. To this end, the different power positions of the parties to the employment contract and the role of the law of dismissal in balancing power imbalance are examined, and the protection of the dignity and livelihood of the employee through dismissal protection is then addressed. Furthermore, freedom of occupation is considered with respect to the maintenance of the existing employment relationship as a goal of dismissal protection law. This is followed by a discussion of the welfare state and its role in the employment relationship. As a conclusion, the paper focus on the essential differences between these two fields of law – antidiscrimination law and dismissal protection law.
CONCLUSION:
The pandemic crisis has both highlighted and exacerbated social inequalities in the world of work, including for women now working remotely in Turkey. Neither the indi- vidual needs of women nor the needs of women workers as a group have been considered during this unique period. At the same time as violence against women has increased, le- gal regulations have not proved sufficient in providing the necessary protections. Instead, women have been treated as collateral damage in the ongoing fight against the pandemic. The next steps will be crucial. In the context of Turkish law, Act on the Protection of the Family and the Prevention of Violence against Women, occupational health and safety measurements according to the Remote Work Regulation and trade unions role in gender equality could be a promising tool in the fight against domestic violence against women. However, in order to meet all the needs of women in an unequally organised work en- vironment and for the realisation of not only de jure but also de facto equality between women and men in the world of work, new approaches are required. Such approaches should address the specific needs of women workers as a group in light of the complex and intersectional nature of the discrimination they experience.
CONCLUSION:
The ILO system is based on the responsibility of individual states. So, its reach is limited, not only in terms of standard-setting activity or the low rate of ratification, but also in view of the weakness of its supervisory mechanisms and the lack of effective sanctions. However, with respect to Turkish industrial relations and the Turkish legal system, these limited monitoring mechanisms are more frequently used com- pared to Germany. The ILO’s tripartite system allows social parties to seek support from the ILO mechanisms, even if they are poorly enforceable. They serve as a place to make the voice of the others heard, whose voices cannot be heard in the national systems for various reasons. It is a place where they can express themselves, seek support and demand their rights are met.
CONCLUSION:
Understanding all the workers who fall within the scope of the protection against union-related dismissal, without making any distinction between workers, employees or the others strengthens the right to be protected against anti-union dismissal in Turkey. The detailed jurisdiction on the grounds constituting union-related dismissal grounds, and those that are not, give in their own way a kind of predictability to social partners. But the narrow interpretation of trade union activity, specially the narrow interpretation of strikes and protection for only lawful strikes within the protection against anti-union dismissal, even if there are very few possibilities of lawful strikes and too many restrictions on the right to strike, arouse concern. Moreover, giving the reinstatement decision only to the employer, denying giving this entitlement also to workers injures the meaning of reinstatement and, generally, the meaning of protection against anti-union dismissal.
In both German and Turkish labor law the employees are protected against unfair dismissal. During the legislative procedure for new regulations about antidiscrimination law in Germany, it became questionable what protection to apply in case of a discriminatory dismissal. Discussions ended up with the acceptance of Allgemeines Gleichbehandlungsgesetz (AGG) (General Act on Equal Treatment) § 2 (4). According to AGG § 2 (4) only the provisions governing the protection against unfair dismissal in general and specific cases shall apply to a case of discriminatory dismissal. Turkish legislation, on the other hand, did not answer the question directly. In 2003 enacted new Turkish Labor Act No. 4857 (4857 sayılı İş Kanunu) (IK No. 4857) on the other hand was regulated according to the antidiscrimination law but without any direct assignment about the case of a discriminatory dismissal.
Here are the questions I would like to address:
What are the objectives of the antidiscrimination law and the law governing protection against unfair dismissals? How is the relationship between them?
How are the employees protected against discrimination and against unfair dismissal by labor law of the both countries?
How do both systems handle the problem of discriminatory dismissal of employer? What can be learned from the other law system (German or Turkish respectively)?
In case of a discriminatory dismissal of employer, the discriminatory action of the employer and the dismissal of the employer must be regarded differently. Employer's discriminatory action (in this case, dismissal) should be considered within the framework of the rules governing anti-discrimination law. Employer's dismissal should be treated in accordance with the provisions governing the termination. In case that a discriminatory dismissal is also unfair: This means that the employer on the one hand commits a discriminatory action in form of a dismissal. On the other hand he dismissed the employer unfair.
The employer violates both the regulations of the anti-discrimination law and the provisions of the protection against unlawful dismissal. Objectives of the anti-discrimination law and the law governing protection against unfair dismissals are different.
Both interests of the employee must be protected.
Throughout the study, the interaction between international labour law, specifically the International Labour Standards of the International Labour Organisation, and German law, and its influence on the development of Turkish law, are discussed. The origins of international labour law are traced, from the United Nations Charter to the International Covenants on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights, to understand how they have influenced national regulations. The International Labour Organisation Conventions, including the Declaration of Philadelphia and the International Labour Standards, play a significant role in the analysis, with specific attention given to ILO Equal Remuneration Convention No.100, ILO Discrimination (Employment and Occupation) Convention No. 111, and ILO Termination of Employment Convention No. 158.
Kasım, Ceren, Antidiskriminierungsrecht versus Kündigungsschutzrecht. Der Schutz vor der diskriminierenden Kündigung im deutsch-türkischen Rechtsvergleich, Schriften zum Recht der Arbeit, Peter Lang Verlag, 2023, 666 Seite.
Kasım, Ceren, ‘Protecting Workers in Uncertain Times: Theoretical Foundations of Dismissal Protection’, in: Improving Working Conditions in Platform Work in the Light of the Recent Proposal for a Directive, Ed. Bellomo, Stefano / Mezzacapo, D. / Ferraro, F. / Calderara D., Sapienza Università Editrice, 2023, p. 199 – 224.
It argues that remote working in the home office blurs the so-called distinction between public/private and paid/unpaid work, by bringing public 'work' from the public sphere into the private sphere at home—into the castle of private 'non-work.'
The article concludes that, given the expected continuation of remote work after the pandemic ensuring adequate, human-centred protection against gender-based domestic violence, particularly against women, within the context of labour law is critical.
Kasım, Ceren, ‘Lockdowns and Domestic Violence: The Impact of Remote Work Regulations on Women Workers in Türkiye During the COVID-19 Pandemic’, in: Work Beyond the Pandemic. Towards a Human-Centred Recovery, Ed. Addabbo, Tindara /Ales, Edoardo / Curzi, Ylenia / Fabbri, Tommaso / Rymevich, Olga / Senatori, Iacopo, palgrave macmillan, Springer, 2023, S. 191-211.
The paper aims to shed light on the underlying theoretical rationales and aims of antidiscrimination and dismissal protection law in the context of labour law, considering the principles of equality in relation to social groups. The paper begins with reflections on antidiscrimination law, starting from processed-based approaches. Then, assessing legal chances for social groups emerging from result-based approaches, continues with critical remarks on equality of opportunities, finally closing the discussion from the perspective of different identities and social groups. The second part addresses dismissal protection law as a tool of social justice. To this end, the different power positions of the parties to the employment contract and the role of the law of dismissal in balancing power imbalance are examined, and the protection of the dignity and livelihood of the employee through dismissal protection is then addressed. Furthermore, freedom of occupation is considered with respect to the maintenance of the existing employment relationship as a goal of dismissal protection law. This is followed by a discussion of the welfare state and its role in the employment relationship. As a conclusion, the paper focus on the essential differences between these two fields of law – antidiscrimination law and dismissal protection law.
CONCLUSION:
The pandemic crisis has both highlighted and exacerbated social inequalities in the world of work, including for women now working remotely in Turkey. Neither the indi- vidual needs of women nor the needs of women workers as a group have been considered during this unique period. At the same time as violence against women has increased, le- gal regulations have not proved sufficient in providing the necessary protections. Instead, women have been treated as collateral damage in the ongoing fight against the pandemic. The next steps will be crucial. In the context of Turkish law, Act on the Protection of the Family and the Prevention of Violence against Women, occupational health and safety measurements according to the Remote Work Regulation and trade unions role in gender equality could be a promising tool in the fight against domestic violence against women. However, in order to meet all the needs of women in an unequally organised work en- vironment and for the realisation of not only de jure but also de facto equality between women and men in the world of work, new approaches are required. Such approaches should address the specific needs of women workers as a group in light of the complex and intersectional nature of the discrimination they experience.
CONCLUSION:
The ILO system is based on the responsibility of individual states. So, its reach is limited, not only in terms of standard-setting activity or the low rate of ratification, but also in view of the weakness of its supervisory mechanisms and the lack of effective sanctions. However, with respect to Turkish industrial relations and the Turkish legal system, these limited monitoring mechanisms are more frequently used com- pared to Germany. The ILO’s tripartite system allows social parties to seek support from the ILO mechanisms, even if they are poorly enforceable. They serve as a place to make the voice of the others heard, whose voices cannot be heard in the national systems for various reasons. It is a place where they can express themselves, seek support and demand their rights are met.
CONCLUSION:
Understanding all the workers who fall within the scope of the protection against union-related dismissal, without making any distinction between workers, employees or the others strengthens the right to be protected against anti-union dismissal in Turkey. The detailed jurisdiction on the grounds constituting union-related dismissal grounds, and those that are not, give in their own way a kind of predictability to social partners. But the narrow interpretation of trade union activity, specially the narrow interpretation of strikes and protection for only lawful strikes within the protection against anti-union dismissal, even if there are very few possibilities of lawful strikes and too many restrictions on the right to strike, arouse concern. Moreover, giving the reinstatement decision only to the employer, denying giving this entitlement also to workers injures the meaning of reinstatement and, generally, the meaning of protection against anti-union dismissal.
In both German and Turkish labor law the employees are protected against unfair dismissal. During the legislative procedure for new regulations about antidiscrimination law in Germany, it became questionable what protection to apply in case of a discriminatory dismissal. Discussions ended up with the acceptance of Allgemeines Gleichbehandlungsgesetz (AGG) (General Act on Equal Treatment) § 2 (4). According to AGG § 2 (4) only the provisions governing the protection against unfair dismissal in general and specific cases shall apply to a case of discriminatory dismissal. Turkish legislation, on the other hand, did not answer the question directly. In 2003 enacted new Turkish Labor Act No. 4857 (4857 sayılı İş Kanunu) (IK No. 4857) on the other hand was regulated according to the antidiscrimination law but without any direct assignment about the case of a discriminatory dismissal.
Here are the questions I would like to address:
What are the objectives of the antidiscrimination law and the law governing protection against unfair dismissals? How is the relationship between them?
How are the employees protected against discrimination and against unfair dismissal by labor law of the both countries?
How do both systems handle the problem of discriminatory dismissal of employer? What can be learned from the other law system (German or Turkish respectively)?
In case of a discriminatory dismissal of employer, the discriminatory action of the employer and the dismissal of the employer must be regarded differently. Employer's discriminatory action (in this case, dismissal) should be considered within the framework of the rules governing anti-discrimination law. Employer's dismissal should be treated in accordance with the provisions governing the termination. In case that a discriminatory dismissal is also unfair: This means that the employer on the one hand commits a discriminatory action in form of a dismissal. On the other hand he dismissed the employer unfair.
The employer violates both the regulations of the anti-discrimination law and the provisions of the protection against unlawful dismissal. Objectives of the anti-discrimination law and the law governing protection against unfair dismissals are different.
Both interests of the employee must be protected.
Throughout the study, the interaction between international labour law, specifically the International Labour Standards of the International Labour Organisation, and German law, and its influence on the development of Turkish law, are discussed. The origins of international labour law are traced, from the United Nations Charter to the International Covenants on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights, to understand how they have influenced national regulations. The International Labour Organisation Conventions, including the Declaration of Philadelphia and the International Labour Standards, play a significant role in the analysis, with specific attention given to ILO Equal Remuneration Convention No.100, ILO Discrimination (Employment and Occupation) Convention No. 111, and ILO Termination of Employment Convention No. 158.
Kasım, Ceren, Antidiskriminierungsrecht versus Kündigungsschutzrecht. Der Schutz vor der diskriminierenden Kündigung im deutsch-türkischen Rechtsvergleich, Schriften zum Recht der Arbeit, Peter Lang Verlag, 2023, 666 Seite.