Events
Applicants who are citizens of the Republic of Azerbaijan started working at the university as foreign contract lecturers in 1996 and 1992, respectively. The applicants’ contract was renewed every year, including in 2016, but was not renewed at the beginning of 2017 on the grounds that their services were not needed.
The applicants applied to the university separately and requested payment of the end-of-work compensation, but no pay was paid by the university. First applicant 1 with a request to cancel the transaction related to the refusal of the request to pay the end-of-work compensation receivable and decide on the compensation of the end-of-work receivable. In the Administrative Court, the second applicant is 2. He filed a lawsuit in the Administrative Court. The Administrative Courts canceled the rejection proceedings and ruled that the applicants be paid end-of-work compensation.
The District Administrative Court, which examined the university’s applications for appeal, accepted the requests for appeals and dismissed the cases. In the justification of the decisions, it was emphasized that the Higher Education Personnel Law No. 2914 stipulates that the fee to be paid to foreign teachers who will be employed under contract in accordance with the Higher Education Law No. 2547 will be determined by the Council of Higher Education within the principles to be determined by the Council of Ministers; it is stated that the Council of Ministers decision No. 83/7148, which determines the fee to be paid to foreign teachers, does not contain a regulation that severance pay can be paid.
Count
The applicants claimed that the non-discrimination ban was violated in connection with the right to property due to the fact that they were treated differently on the basis of nationality by not paying the end-of-work compensation.
Evaluation of the Court
The applicants were deprived of the end-of-work compensation, which is obvious that it will be obtained if they become Turkish citizens, due to the fact that they are not Turkish citizens. In this case, it is clear that contract lecturers are treated differently on the basis of whether they are Turkish citizens in terms of being entitled to end-of-work compensation.
It is observed that there is no information provided in the administration’s process and the decision of the District Administrative Court on the reason for the different treatment in a concrete incident. In the opinion of the Ministry, it was stated that it is fair not to pay end-of-work compensation to these people due to the high contract fees of contracted foreign teachers. However, in the opinion of the Ministry, it was not explained what advantages foreign lecturers have compared to Turkish citizen lecturers, and it was suggested that this issue should be asked from the Higher Education Institution.
As a rule, an examination is carried out on the grounds of the courts of instance when checking whether the rights and freedoms have been violated in an individual application. In a concrete case, when the decisions of the degree courts are examined, it is not mentioned that foreign teachers have some advantages in terms of wages, nor is it seen that different treatment is justified on the specified basis. The Regional Administrative Court was content to state that there is no provision in the legislation providing for the payment of payable end-of-work compensation to foreign national lecturers under contract, and did not conduct a non-discrimination review. In this case, it was evaluated that the reason for not paying end-of-work compensation to contracted foreign public officials would be speculation by accepting that the high wages paid to them were the reason.
Although the public authorities have a certain degree of discretion in regulating the conditions for which end-of-work compensation is Dec and creating differences between people in this sense, it is necessary to show that different treatment is based on objective and justified reasons. However, in the concrete case, it was not revealed that there was an objective and justified basis for the different treatment that the applicants were subjected to because they were foreign nationals.
Considering the justification of the Regional Administrative Court, it is understood that the non-payment of end-of-work pay to applicants is in accordance with the law, based not on an explicit provision of the law prohibiting pay, but on the lack of regulation in the second legislation. Therefore, it is understood that the main reason for the different treatment is the regulation and interpretation of secondary legislation on the wages of foreign lecturers without regard to constitutional provisions. Since there is no clear legal provision prohibiting paying end-of-work compensation to applicants, it is the constitutional duty of the courts of degrees to interpret the provisions of secondary legislation in accordance with constitutional principles. In this respect, it has been contrary to the obligation of judicial authorities to interpret the provisions of the legislation in the light of constitutional guarantees to justify the non-payment of end-of-work pay to the applicants on the grounds that there is no clear provision stipulating payable.
In this case, the contracted job among lecturers in terms of entitlement to compensation is the end of a Turkish citizen are made on the basis of whether there exists a reason that led to the conclusion that different treatment is objectively justified. Since it was concluded that there was no justified reason for the different treatment, there was no need to conduct a further examination in terms of proportionality.
The Constitutional Court has ruled that the prohibition of discrimination has been violated in connection with the right to property on the grounds described.
You can reach our other article samples and petition samples by clicking here.
