THE EMPLOYEE CONTRACT CANNOT BE VALIDLY TERMINATED OF THE EMPLOYEE PLAYING OKEY IN COFFEE DURING THE INTERRUPTION

9. Law Office

Base Number: 2015/22089

Decision Number: 2015/29606

“Justice Text”

COURT: LABOR COURT
CASE: The plaintiff requested the invalidity of the termination and the decision to be reinstated.
The district court dismissed the case.
After the report prepared by the Investigation Judge for the case file was heard, the file was examined, and the necessity was discussed and considered:

Y A R G I T A Y A R A R I

A) Summary of Plaintiff’s Request:
Plaintiff’s attorney; the plaintiff started to work at the workplace of the defendant company in Dudullu on 03.12.2010, the plaintiff constantly asked the employer for their work due to the non-payment of overtime wages despite the overtime work at the workplace, therefore the plaintiff verbally terminated the employment contract in order to intimidate the other workers, …. There is no opportunity to eat at the workplace, therefore the plaintiff and employees went out for a lunch break, when they came to the workplace, the workplace manager was asked to defend it on the grounds that he left the workplace without permission, that the plaintiff has been working overtime for 2 hours every day since the day he started work, that he did not interrupt his work. and declared that he did not make absenteeism, and demanded the invalidity of the termination.
B) Summary of Respondent’s Response:
Attorney for the defendant; that the plaintiff’s employment contract has been terminated for justified reasons, as a fresh sales officer within the defendant employer’s …. that he was employed at the company, ….. should also be included in the lawsuit, that the plaintiff’s employment contract was terminated according to Article 25/2-e of the Labor Law No. 4857, that the plaintiff left the workplace unannounced and without permission during working hours and that they played games with his friends in the coffee house, the plaintiff both declaring that his employment contract was terminated both verbally and in writing, and demanded the dismissal of the case.
C) Summary of Local Court Decision:
The court concluded that there is not sufficient evidence that the plaintiff, as a delivery staff, reported that they had completed the visits they had to make during the day, although they did not complete it, that the plaintiff arranged the break time with flexible working hours, but that the employer was caught playing okey in a cafe, which is a negative behavior for the employer, but this behavior is justified by the employment contract. Therefore, it was decided to accept the case on the grounds that it was not of sufficient weight to necessitate its termination and that the termination made by the employer was valid.
D) Appeal:
The plaintiff’s attorney appealed the decision.
E) Reason:
In Article 20/II.c.1 of the Labor Law No. 4857, the burden of proof that the termination was based on valid reasons is given to the defendant employer.
While fulfilling the burden of proof, the employer will first prove that it complies with the formal conditions of termination. Accordingly, it must have made the termination process in writing, documented in certain cases that the worker wanted his defense, and clearly and concretely demonstrated the reasons for the termination on which the written termination was based. After it is understood that the employer fulfills the formal conditions, the stage of proving that the reasons for termination in terms of content are valid (or justified) will be passed.
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; is to avoid the possibility 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 his 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.
The employer, who bears the burden of proof, must also prove that the behavior or incompetence of the plaintiff, with valid and just reasons, caused negativities in the workplace and that the business relationship has become unbearable.
According to the content of the file, the employment contract of the claimant worker was terminated in accordance with Article 25/II-e of the Labor Law No. 4857. Although the defendant

Although he claimed to have reported that he had completed the visit on 7.09.2012 as if he had not completed it, this issue has not been proven with concrete and convincing evidence, as accepted in the court’s reasoning. The defendant also states that the plaintiff was caught playing okey in a coffee shop on 10.09.2012, and therefore his employment contract was terminated. According to the witness statements, it is stated that the plaintiff was in the coffee shop between 12:00-13:00, that the employees in the distribution business, like the plaintiff, determine when they will use their daily break, and that they usually use breaks during these hours, this issue cannot be a reason for termination and it is stated that the termination is invalid. While it should have been accepted, it is wrong for the court to reject the case with the above-mentioned reason.
Pursuant to Article 20/3 of the Labor Law No. 4857, our Department has decided as follows.
PROVISION:
With the reason explained above;

1. TO REFUSE THE COURT’s decision,
2. INVALIDITY of the termination and RETURN of the plaintiff,
3. If the defendant employer does not start work in due time despite the plaintiff’s application within the legal period, the amount of compensation to be paid is determined by the plaintiff’s 4 months’ gross wage, taking into account the plaintiff’s seniority and the reason for termination,
4. Wages and other rights, which will be entitled if the plaintiff applies to the employer for reemployment in due time, and up to a maximum of 4 months until the finalization of the decision, MUST be collected from the defendant,
5. Since the fee is paid in advance, there is no room for it to be taken again,
6. 307.60 TL litigation expenses incurred by the plaintiff be collected from the defendant and given to the plaintiff, leaving it above the defendant’s legal expenses,
7. According to the tariff in force on the date of the decision, the fee of 1,500 TL is to be taken from the defendant and given to the plaintiff,
8. Refund of the prepaid appeal fee to the relevant person upon request,
   It was decided unanimously on 22.10.2015.