T.C.
SUPREME
- law office
E. 2007/31272
K. 2008/10447
T. 28.4.2008
• INVALIDITY OF TERMINATION AND CASE OF RETURN TO WORK (On the Expiration Date, the Parties Remain Silent and the Contract Becomes Indefinite Because the Contract Is Renewed – The Termination is Not Based on the Valid Reason, Taking Into Account the Plaintiff’s Discomfort and Treatment Status)
- INDEFINITE-TERM EMPLOYMENT CONTRACT ( The Contract Becomes Indefinite–Term Because the Contract Is Renewed by Keeping the Parties Silent on the Expiration Date – According to the Workplace Documents, The Plaintiff’s Work Is of a Continuous Nature)
• CONDITIONS FOR CONCLUDING A FIXED-TERM EMPLOYMENT CONTRACT ( The Contract Must be Tied to the Term and There Must Be Objective Reasons for Concluding a Fixed-Term Employment Contract)
• DURATION OF THE EMPLOYMENT RELATIONSHIP (Even If There is an Objective Reason, If the Date of Termination of the Employment Relationship on the Date of Conclusion of the Contract is Not Clear or Can Not be Determined, There Will Be an Indefinite-Term Employment Contract)
4857/m.11, 18, 21
818/m.388
5580/m.9
SUMMARY: The plaintiff requested that the termination be invalidated and that his/her return to work be decided. In order for a fixed-term employment contract to be mentioned, the contract must be tied to the term and there must be objective reasons for concluding a fixed-term employment contract. Even if there is an objective reason, if the date of conclusion of the contract, the date of termination of the employment relationship is not clear or can not be determined, an indefinite-term employment contract is in question. It is also not enough that there is an employment contract that depends solely on the duration. Because the freedom to conclude business contracts for a certain period of time is limited, and the possibility of concluding such contracts depends on the existence of objective conditions.
The contract was renewed with the parties remaining silent on the expiration date, the plaintiff continued to work until the termination date, according to the workplace documents, it is understood that the plaintiff’s work is of a continuous nature, there are no objective conditions that will require a certain contract for a certain period of time, such as performing a certain job, completing a project. In this case, it should be recognized that the service contract is of indefinite duration, and the plaintiff can also take advantage of the provisions of the labor guarantee. Considering the plaintiff’s discomfort and the state of treatment, it is clear that the termination by the employer is not based on the valid reason.
CASE : The plaintiff requested that the termination be invalidated and that his/her return to work be decided.
The local court rejected the request.
Having been appealed by the plaintiff’s lawyer during the sentencing period, the Examining Judge S. For the case file After listening to the report edited by Kıçaklı, the file was examined, the need was discussed and considered:
DECISION: Stating that the employment contract was terminated by the respondent employer without a valid reason, the plaintiff employee requested that the termination be invalidated and that his/her return to work be decided.
The court decided to dismiss the case on the grounds that the contract is of a certain duration.
18 of the Labor Code No. 4857. in accordance with the article, the employee must work with an indefinite-term employment contract in order to benefit from the provisions of the labor guarantee.
11 of the Labor Code No. 4857. in its article, “Although the employment relationship is not made for a period of time, the contract is considered to be of indefinite duration. An employment contract concluded in writing between an employer and an employee for a certain period of work or depending on objective conditions, such as the completion of a certain job or the occurrence of a certain phenomenon, is a fixed-term employment contract dec A fixed-term employment contract cannot be concluded in more than one row ( chain ) unless there is a good reason for it. Otherwise, the employment contract is considered indefinite from the very beginning. The principles on this issue have been determined by the regulation in the form of ”chained employment contracts based on the main reason, they retain the property of being of a certain duration”.
In contrast to the regulation in the Code of Obligations, the main rule was put forward by emphasizing that the contract will be considered indefinite in the event that the business relationship is not made depending on the period, in contrast to the regulation in the Code of Obligations. It is an exception that employment contracts are of indefinite duration, the main one is of fixed duration. In the law, a fixed-term employment contract may be concluded with certain-term jobs depending on objective conditions, such as the completion of a certain job or the occurrence of a certain phenomenon. Malicious practices that are used to exclude the employee from job security should not be protected.
In order for a fixed-term employment contract to be mentioned, the contract must be tied to the term and there must be objective reasons for concluding a fixed-term employment contract. Even if there is an objective reason, if the date of conclusion of the contract, the date of termination of the employment relationship is not clear or can not be determined, an indefinite-term employment contract is in question. Even if the employment contract is not explicitly bound to a certain period by the parties, if it is understood from the purpose of the work that it is a certain period, the contract is implicitly bound to the period (BK art. 338/1 ).
The existence of an employment contract that depends solely on the duration should not immediately lead to the conclusion of a refusal to return the case to work. Because Article 11 limited the freedom to conclude business contracts for a certain period of time, and the possibility of concluding such contracts depended on the existence of objective conditions specified in this provision. Therefore, when they bind the employment contract to a certain period of time, the judge must examine whether objective and substantive conditions exist, as a result of which the indefinite term of employment contracts is the main one, the party asserting the existence of a specific employment contract is obliged to prove it.
In Article 11 of the Labor Code, which situations can be considered objective reasons for accepting the existence of a specific employment contract, it is considered as an example: the continuation of a certain period of time due to the nature of the work, the completion of a certain job, or the occurrence of a certain phenomenon. These reasons shown in the Law are not given as a rule; they are given as an example; in similar cases, the possibility of establishing a specific employment contract has been kept open. Because, in the provision in question, the phrase “… depending on objective conditions, such as”… is explicitly included.
There are also regulations in the Turkish legal legislation that make it mandatory or possible to conclude certain employment contracts. For example, Article 9 of the Law on Private Educational Institutions No. 5580. (1) according to subparagraph, institutions working in the administrator, teacher, master teacher and founder or the founder’s business representative to be made between master teachers with a contract term of one calendar year, including at least according to the specific term specified in the regulations to be written is made. Thus, it is obligatory that the employment contracts to be concluded with private school teachers, principals and other managers of the employment contract be of a certain duration and not less than one year.
In paragraphs 2 and 3 of Article 11 of the Labor Code, it is regulated that fixed-term employment contracts that are chained will retain their fixed-term nature if they are based on a valid reason; otherwise, they will be considered an indefinite-term employment contract. If there is an objective reason for the performance of a fixed-term employment contract, and this reason continues, or if a new reason has arisen, fixed-term employment contracts should be considered renewable. In order for chained employment contracts to retain their specific term nature, it is also not necessary that the objective reasons sought in each of them be the same.
The 11th article of the Labour Code of the 1st and 2nd between the parties within the meaning of the paragraph concluded without any substantial reason, fixed term contracts, will be considered for an indefinite term, since the end of a period has ended the contract with the employer when the worker of the contract indefinite-lived becomes the employer to comply with the requirements of notification from the dissolution of the employment contract was dissolved by asserting that without showing a valid reason, such as a monthly period will be able to file a lawsuit within the statutory limitation. The beginning of the one-month period of entitlement reduction is the date of notification, which means a termination made by the employer without observing the notification period, because it turns into an indefinite-term contract, when the employer, accepting it as a fixed-term contract, informs that the contract has expired after the expiration of the period, is the date of notification.
According to the contents of the file, the plaintiff started working at his workplace as an expert engineer with a one-year contract dated 1.8.2005. 1.8.2006 renewed the contract with the parties on the expiration of the silence, the claimant continued to work until the date of termination, workplace documentation, according to the plaintiff’s work carries a continuous attribute certain that you get the job done, such as the specific term to a contract that will require the completion of a project understands that there are objective conditions. In this case, it should be recognized that the service contract is of indefinite duration, and the plaintiff can also take advantage of the provisions of the labor guarantee. Considering the plaintiff’s discomfort and the state of treatment, it is clear that the termination by the employer is not based on the valid reason.
For the specified reasons, Article 20 of the Labor Code No. 4857.article 3.according to its paragraph, the provision had to be eliminated by distortion and decided as follows.
CONCLUSION : For the reasons mentioned above;
1- Overturning and eliminating the decision,
2- Invalidity of the termination made by the employer and return of the plaintiff to work,
3- Despite the fact that the plaintiff applied for a job within the legal period, the amount of compensation that must be paid if the employer does not start a job within the period is determined as a 4-month fee, taking into account the reason for termination and seniority,
4- Determining that the claimant should be paid a maximum of four monthly wages and other rights that will be entitled to if the claimant applies to the employer for a return to work within the period until the decision is finalized, if the claimant starts work, the notice and severance pay paid, if any, will be deducted from this receivable,
5- Since the fee is received in advance, there is no place for its re-receipt,
6- Since the plaintiff is represented by a proxy, according to the tariff in force on the date of the decision (500.00), the power of attorney fee of TRY will be taken from the defendant and given to the plaintiff,
7- The (52.40) trial fee made by the plaintiff was taken from the defendant and given to the plaintiff, the defendant’s trial fee was left over, 8- The appeal fee received in advance was returned to the relevant person on request, strictly speaking, it was unanimously decided on 28.04.2008.
