- Law Office
Base Number: 2017/12550
Decision Number: 2019/14617
“Justice Text”
COURT: LABOR COURT
The decision made as a result of the lawsuit between the parties was requested by the defendant’s attorney to be examined on appeal, and it was understood that the appeal requests were in time. After listening to the report prepared by the Investigation Judge for the case file, the file was examined, the need was discussed and considered:
JUDICIARY DECISION
A) Summary of Plaintiff’s Request:
Plaintiff’s attorney; the plaintiff worked at the defendant’s workplace between 02.05.2013 and 02.09.2014, he was a compliant person and did not have any problems. However, the termination is unfair, any talk at the workplace does not constitute gossip, does not disturb the workplace working peace, groupings and conversations in the workplace are due to human nature, the plaintiff was a union member on 14.04.2014 and the employment contract was terminated for unjustified reasons. claiming that severance and notice pay should be paid to the plaintiff and that they demand it; demanded and sued for the admissibility of the case.
B) Summary of Respondent’s Reply:
Attorney for the defendant; When the plaintiff was on the 16.00-24.00 shift on 28.08.2014, he told his colleague Z.T. and the general responsible T.O. He slandered and insulted ZT by saying “You live the life of a close friend of your supervisor, he protects and watches over you for him”, he argued with the general manager … The disciplinary board decided to terminate with the decision dated 02.09.2014 and numbered 2014/10, that the plaintiff’s employment contract was terminated due to the 25/II-d art. Arguing that he was sent to the hospital at around 21.10, saying that he could not breathe, a person named Zuhal was given to him, that he smoked in the company vehicle although it was illegal, and that there was no finding in the controls at the hospital, and that he declared that smoking was a mistake; requested that the case be dismissed.
C) Summary of Local Court Decision:
During the discussion of the employment contract with another worker; The dispute was terminated due to the fact that the worker with whom he had an argument made words that he was living a friendly life with another worker, the dispute was gathered at the point of whether this behavior of the plaintiff gives the employer the right to rightful termination, the reasons arising from the behavior of the worker in Article 18 of the Labor Law, the right of immediate termination pursuant to Article 25 of the same law. It has been decided that if the giver is not in weight, it can be a basis for valid termination, that the plaintiff’s behavior, which is based on justified termination, does not significantly hinder the conduct of the work in the workplace, but causes unease among the employees, and that this can be a basis for valid termination, not just termination, and therefore, the plaintiff can receive severance and notice pay.
D) Appeal:
During the decision period, the defendant’s attorney appealed.
E) Reason:
1- According to the writings in the file and the lack of inaccuracy in the judgment of the evidence, the objections of the defendant, which fall outside the scope of the paragraph below, were not deemed appropriate.
2- Article 18 of the Labor Law No. 4857 authorizes the employer to terminate the employment contract for reasons arising from the employee’s behavior and competence. The purpose of the termination arising from the behavior of the worker is not to punish or impose sanctions on the acts contrary to the employment contract previously committed by the worker; it is to avoid the risk of continuing or repeating the breach of contractual obligations. In order for the employment contract to be terminated due to the employee’s behavior, the employee’s behavior in violation of the employment contract must exist. If the worker has acted in breach of the contract with his faulty behavior and the employment relationship has been adversely affected as a result, there will be a valid termination arising from the worker’s behavior. On the other hand, since the worker cannot be held responsible for the worker’s acts contrary to the contract that are not based on fault and negligence, the valid reason for termination arising from the worker’s behavior cannot be mentioned.
The reasons arising from the behavior and competence of the worker, besides the reasons stated in the 25th article of the same Law, are not of this nature, but they are the reasons that significantly affect the performance of the work in the workplaces. It will be necessary to accept that the termination is based on valid reasons, in cases where the continuation of the employment relationship cannot be expected to be significant and reasonable for the employer, due to the employee’s behavior or incompetence.
Termination based on the behavior of the worker, first of all, stipulates the violation of the employment contract by the worker.
is the name. In this respect, first it is necessary to determine exactly which contractual obligation is imposed on the worker, and then with what behavior the worker violates the concrete contractual obligation. Undoubtedly, it should be examined in this context that the breach of the employee’s employment contract is not so severe that the employer has the right to terminate it immediately. Then, it must be determined whether the worker could have avoided concrete breach of his obligation had he wanted to. It is essential that the employer’s operational interests have been damaged due to the worker’s concretely determined breach of contract.
The scope of the worker’s obligations is determined in individual and collective labor agreements and legal regulations. Contract violations caused by the worker faulty (whether intentionally or negligently) gain importance in terms of termination of the contract. In order for a valid termination reason to be mentioned, it is not necessary for the worker to deliberately violate his contractual obligations. Violation of the duty of care and negligence is sufficient. On the other hand, the behavior of the worker that is not based on his fault, as a rule, does not give the employer the right to terminate the contract based on the behavior of the worker. The degree of fault will play a role in estimating the possible negative effects of the employment relationship after the termination of the employment contract and in weighing and balancing the benefits.
In determining whether the worker violates the employment contract, not only the primary performance obligations; Side performance obligations and side obligations arising from the law or the rule of good faith should also be taken into account. The obligation of loyalty imposes on the parties of the contract the obligation not to harm the other party’s person, property and other legally protected assets in the performance of the debts arising from the contractual relationship, and to refrain from any behavior that would endanger the purpose pursued by the contract outside the scope of the contractual relationship, especially that would undermine mutual trust.
The employer is obliged to prove that the worker has violated his obligations arising from the employment contract.
The employee’s duty to perform work is embodied by the instructions given by the employer within the scope of the management right. The opposite of the employer’s right to manage is the employee’s obligation to comply with the employer’s instructions. Based on the right of instruction, the employer regulates where, how and when the act of doing work, which is outlined in the employment contract, will be carried out. Instructions to be given about the start and end times of the daily working period, how to apply the break, the distribution of work in the workplace or the tools, equipment and techniques to be used are considered among such instructions. The employer’s right to manage includes maintaining order in the workplace and giving instructions on the behavior of the worker. On the other hand, the employer’s right of instruction cannot be in question regarding the amount of the wage and the scope of the owed working time, which are the essential elements of the employment contract. The employer does not have the authority to unilaterally increase the total working time or reduce it in a way that will affect the wage. In the event that the employer gives instructions to cover the essential elements of the employment contract and the balance between the performance and counter-performance in the employment contract is disturbed, the provisions regarding job security may be circumvented. It is possible to narrow and expand the employer’s right to give instructions by law, collective bargaining agreement and individual employment contract. In other words, the employer’s right to give instructions is limited to the provisions of the law, collective bargaining agreement and individual employment contract. In this respect, since the employer cannot give instructions contrary to the provisions of criminal and public law, the worker is not obliged to comply with such instructions. Apart from this, the employer cannot give instructions that violate the employee’s personal rights. Likewise, due to the prohibition of abuse of the right regulated in Article 2 of the Civil Code, the employer cannot give instructions contrary to the rule of good faith. In that case, the employer cannot give instructions that will create inequality that will result in favor of other workers but against one or more workers, and cannot give instructions to inflict persecution and suffering on the worker. Accordingly, the employer is also obliged to comply with the equal treatment debt when giving instructions.
The worker must comply with the instructions given by the employer within the scope of the management right. Failure of the worker to comply with the instructions gives the employer the right to terminate the employment contract, either justified or valid, depending on the situation. Sub-paragraph (h) of the second clause of Article 25 of the Labor Law accepts the insistence of the worker not to perform the duties that he is responsible for, despite being reminded, as a justifiable reason for termination. On the other hand, as stated above, according to the justification of the Labor Law, “performing his job incompletely, poorly or insufficiently despite warnings” is a valid reason for termination.
Every faulty production or service in a business relationship does not give the right to terminate the employment contract. In particular, the average that a worker can be expected to do
A manufacturing or service error cannot be a reason for termination of the employment contract. However, a faulty production or service above the margin of error that can be expected from a worker, in other words, above the tolerance limit, may be important for the termination of the employment contract. The low efficiency of the worker may be due to his own will or due to his inadequacy. It is often difficult to draw the boundary between not wanting to fulfill the act of working and not being able to fulfill it. While the first case is a temporary termination based on the behavior of the worker within the meaning of Article 18 of the Labor Law, the second case is a temporary termination due to the worker’s incompetence. However, if the worker does not want to fulfill his obligation to work, warning the worker and threatening to terminate the employment contract can have a positive effect. For this reason, it should be mandatory to give a warning to the worker in both cases. Because, while the warning may have a positive effect on the worker who does not want to fulfill the act of doing business at all or who wants to fulfill it incompletely; It will not have any positive effect on the worker who has no or insufficient physical competence in terms of working. In this way, it is possible to distinguish between the termination caused by the incompetence of the worker specified in Article 18 of the Labor Law and the inadequate performance of the work mentioned in the Justification, which gives the right to terminate the employment contract due to the behavior of the worker. Thus, the employer who terminates the employment contract by believing that there is no need for a warning based on the existence of a reason for termination arising from the employee’s incompetence, gets rid of the danger of encountering the consequences of invalid termination (reinstatement to work) resulting from the failure to give notice, as a result of the determination of the existence of a termination reason based on the behavior of the employee.
Obedience to the fringe obligations is removed from the honesty rule today. Accordingly, the act of doing business should be performed as required by the honesty rule.
The reason for termination arising from the behavior of the worker stipulates a faulty behavior of the worker.
Pursuant to subparagraph (d) of the second paragraph of Article 25 of the Labor Law, the employee’s words or acts that would harm his honor and honor towards the employer or his family, or the unfounded denunciations and accusations about the employer, or the employee’s disqualification from the employer or his family members. bullying someone is counted as a just cause for termination. In such cases, the worker cannot rely on the freedom of expression guaranteed by Articles 25 and 26 of the Constitution. On the other hand, if the words of the employee against the employer, which are not of such weight, are of a nature to disrupt the working order, they should be considered as valid reasons for termination. Unfavorable statements directed not only against the employer but also against the employer’s representative and which are not of sufficient weight to require just termination should be considered as valid grounds for termination. Likewise, when the employee insults and insults those who are close to the employer or has a close relationship with the employer or is a partner in another business, although they are not from the employer or their family members, making false statements and accusations to these people, this is especially true for small businesses where the employer’s personality is important. shall constitute a valid reason for the termination of the contract. The employee’s harassment of another employee of the employer is considered a justifiable reason for termination pursuant to the provision 25/II, d. Unless it is in the nature of teasing, engaging in constant and unnecessary arguments with other workers, showing serious incompatibility with colleagues are valid grounds for termination (Declaration of our Department dated 26.05.2008 and 2007/37481 Principle, 2008/12505 Decision)..
Saying harsh words, which will be evaluated within the scope of Article 25 of the Labor Law, as a result of provocations by the worker, employer or his representative, should be considered a valid reason for termination. A valid termination cannot be mentioned when there is a constructive and objective criticism about a particular field of expertise or a criticism of malfunctions or non-compliances in the business.
In concrete conflict; From the information and documents in the file, the plaintiff said to her colleague, female worker Z.T., “Your superior’s cunt, you live a friendly life, he protects and watches over you”, and in the petitions filed with the employer regarding this, the plaintiff’s married Z.T. and T.Ö. made rumors that they had a friendly life between them, and this matter was transferred to the administration. This behavior of the plaintiff is teasing another worker in the workplace as per article 25/II-d of the Law No. 4857 and gives the employer the right to terminate. While the severance notice of the plaintiff, whose employment contract was terminated rightly, should be rejected, its acceptance was erroneous and necessitated breaking it.
F) CONCLUSION:
It was unanimously decided on 01.07.2019 that the appealed decision be OVERFINED for the reasons explained, and that the appeal fee paid in advance would be returned to the relevant person upon request.
