The Supreme Court's Application of the 'Last Resort' Principle in Employment Termination for Flight Personnel Losing Flight Qualification and Reassignment to Ground Services under Aviation Labor Law

Attorney Dr. Tolga Ersoy | Aviation Labor Law | April 21, 2016

Within the context of Aviation Labor Law, should the employment contract of personnel who have lost their qualification to participate in flight operations be terminated? Or should the option of employing such personnel in ground services be evaluated? Is there any legal regulation compelling airline companies in this regard?

A recent decision by the Supreme Court provides answers to these questions. Specifically, pursuant to the precedent of the 9th Civil Chamber of the Supreme Court, dated November 19, 2015, numbered 2015/22929 E. (Application) and 2015/32994 K. (Decision), as a result of the examination of a lawsuit seeking reinstatement, the existing employment contract was evaluated, also taking into account the "principle of termination as a last resort". In the decision, although the employment contract of the plaintiff, who sought reinstatement, contained a provision stating that "in the event of a condition preventing flight, the employer shall unilaterally terminate the employment contract, and the employer has no obligation to assign the personnel to duties other than flight operations", it was noted that the procedure for flight personnel leaving flight duties, implemented by the defendant employer, included a regulation stating that when a health condition preventing flight arises, the flight personnel shall be assigned to ground services. It was stated that this provision should be applied due to its being in favor of the employee.

In the decision, considering that the option of assigning the plaintiff to ground services in accordance with this procedure, as required by the principle of termination as a last resort, was not attempted, and no effort was made by the defendant in this regard; it was neither alleged nor proven by the defendant company that there was no suitable position for the plaintiff in ground services, and accordingly, the defendant failed to prove that it acted in accordance with the principle of termination as a last resort, it was ruled that the termination was therefore not based on a valid reason.

The decision rendered in writing with an erroneous assessment, instead of accepting the lawsuit, was deemed a ground for reversal, and the Local Court's decision was overturned.

In the incident subject to this lawsuit, it is understood that the plaintiff, who performed flight duties, was diagnosed with Pneumonia.

The plaintiff performed the planned flight duties after each period of rest prescribed by doctors, and following the expiration of their last medical report, was referred to Memorial Hospital by the defendant company. As a result of the examinations conducted, a report was issued stating that they could not perform flight duties and were unfit for flight. The said report stated that the illness recurred and worsened during flight duties.

In THY Inc.'s Procedure for Flight Personnel Leaving Flight Duties, numbered 01.70.009, the matter of cabin personnel leaving flight duties due to health reasons is regulated, and Article 4,B 1/e of the procedure contains a regulation stating "that cabin crew members cannot effectively perform flight services or would endanger their own health if they fly, as documented by a Board Report from one of the hospitals where the Corporation's cockpit crew undergoes periodic flight examinations".

It is understood that the process was conducted in accordance with this procedure, and a report was issued regarding the plaintiff stating "unfit for flight", and that their inability to perform flight duties due to health reasons was finalized by the Board Report dated January 3, 2014, and numbered 03/14, issued by Memorial Hospital.

In this situation, the plaintiff should have been assigned to a ground duty, as this is explicitly stated in Article 4 B.2 b of the Procedure; yet, the defendant company terminated the employment without adhering to the procedure, leading to a lawsuit seeking a declaration of invalidity of the termination and reinstatement.

In the Supreme Court's legal regulation concerning the existing provision, the principle of "termination as a last resort" was taken into consideration.

However, one of the most important points to note is that, in this precedent, a provision of the existing contract was considered and interpreted in light of one of the fundamental principles of Labor Law. Consequently, a decision was rendered in favor of the plaintiff, who was flight personnel.

The main question that should be asked is this: How would one proceed if this provision were not include '../../footer.php'; ?>