Summary:
Since the plaintiff’s acceptance of this regulation in the employment contract will not give the employer the absolute right to change the plaintiff’s workplace, this authority will have to be used objectively. The employer must prove in our case that the offer of a wage change that was not accepted by the plaintiff is based on a valid reason in accordance with the principles described above. The file is located in Çorlu within the scope of the employer in the workplace, both fixed wage, both fixed fee+ piecework wage workers, the employer to the plaintiff fixed fee+ piecework wage offer that was made is not accepted in writing by the plaintiff on the plaintiff’s application is made of the fixed fee in Bayrampasa assigned to the workplace, however, absent from the scope of the plaintiff’s workplace is constant on going to his file. The plaintiff’s employer in the employment contract signed between the parties, agree to work in the different establishments, in addition to different employers in the same workplace about the purpose of making this change, breaking the peace of the application fee and the application fee to the workplace in order for the plaintiff to accept the defense of new fixed fee that is applied in the workplace about himself as a result of the continued application of the arbitrary assignments of the employer’s management rights Bayrampaşa do not use, for this reason, it was necessary to accept that the amendment of this fee was based on the valid reason that there was no fundamental change in the plaintiff’s working conditions. As such, it is understood that the change of place made by the respondent has been proven to be based on a valid reason and that the plaintiff has the right to terminate the employment contract rightfully in accordance with Article 25/2-g of Law No. 4857 in the face of the fact that the claimant is absent by not going to a new workplace and that it is fixed by the minutes kept. For these reasons described, the claimant’s claims for severance and notice compensation should be rejected, while the acceptance as a result of an incorrect assessment was incorrect and required distortion.
T.C.
Supreme
- law office
Base No:2012/29764
Decision No:2013/28345
K. Date:6.12.2013
LAWSUIT: The plaintiff requested that it be decided whether they will receive seniority, notice compensation, overtime, wages and annual leave fees.
The court partially ruled on the request.
Although the defendant was appealed by his lawyer during the sentencing period, after hearing the report prepared by the Examining Judge for the case file, the file was examined, discussed and considered as necessary:
The plaintiff’s representative, you want to download the employer’s wages to the minimum wage, who did not accept at the factory in Istanbul-tasking threatens the dissolution of the employment contract, severance pay and then some by not taking on 03.11.2011 labor of receivables from the defendant declaring his education he wanted.
The defendant’s deputy said that the plaintiff has a fixed wage payment in some units of the engraved card department where he works, and in some units there is a wage procedure according to the product produced per piece, in this procedure, he is entitled to a minimum wage up to a certain quota, this quota is then taken in by piece,section by the employer on 01.11.2011 production per track completely etched on cards-premium taken a decision to continue with the procedure if it was declared in writing by the plaintiff is not considered,this situation is different in the same place and the work among employees leads to affect the peace of the application fee,the plaintiff would not be able to work in the etched section of the card, therefore the section he was transferred to the fixed fee of the application smart card production Bayrampasa, however, he defended the rejection of the case by stating that the plaintiff did not accept this and then did not start his job at the new post and was absent.
Although the court has agreed in advance that the plaintiff’s employment contract and the employer will work in the same or other job in other existing or operating establishments in the country, it cannot be said that the employer uses his right arising from the employment contract and management authority objectively and in good faith, it has been decided that the appointment of the plaintiff from the workplace in Corlu to the workplace in Bayrampaşa, even with the same personal rights, will create a fundamental change in working conditions, and the plaintiff cannot be expected to accept this on the grounds that severance and notice compensation and other labor receivables will be accepted.
1-The dispute between the parties is to the point of dec there is a fundamental change in the plaintiff’s working conditions and whether the defendant’s workplace uses the right of management in this regard objectively.
One of the most controversial areas of labor law is the definition of working conditions, the implementation of these conditions, making changes, and finally deciphering the fine line between the change that is not dependent on the acceptance of the employee and the employer’s right to management.
All rights and obligations arising from the employment relationship and subject to the performance of work should be considered as “working conditions”. 22 of the Labor Code No. 4857. in its article, “the employer may make a fundamental change in the working conditions caused by the employment contract or the october personnel regulations and similar resources attached to the employment contract, or workplace practice, only by notifying the employee in writing. Changes that are not made in accordance with this form and are not accepted by the employee in writing within six working days do not bind the employee. If the employee does not accept the amendment proposal within this period, the employer may terminate the employment contract by explaining in writing that the amendment is based on a valid reason or that there is another valid reason for termination and complying with the notification period. The worker is in this case from 17 to 21. according to the provisions of the article, he can file a lawsuit”The regulation forms the normative basis for the change in working conditions.
The employee’s obligation to see work, which are the main elements of the employment contract, and the employer’s obligation to pay wages in return for this are the most important working conditions. Dec Dec October 2010, the following social benefits are included among the working conditions: where and when the work will be seen, working hours at the workplace, annual leave periods, supplements to the payable, rest breaks, marriage, birth, tuition, food, disability and death benefits. The inclusion in the private pension system of the employee on the condition that special health insurance is provided or that premiums are paid by the employer is also included in the concept of working conditions.
If there are regulations in the employment contract that it is possible to make changes to working conditions if necessary, the employer’s right to expanded management is mentioned. In this case, the employer constantly acquires the right to make changes to the working conditions of the employee, provided that he does not abuse his right to management and complies with the limits in the contract. For example, the provisions of the contract that the employee may also be assigned to other workplaces belonging to the employer, if necessary, reserve the right of the employer to make changes in this regard. The mentioned right should be used objectively. The introduction of the provision of the contract to ensure the termination of the employee’s employment contract is an abuse of the employer’s right to management.
Changes that remain within the scope of the employer’s right of management or are based on a valid reason cannot be qualified as a fundamental change in working conditions.
The proposed amendment does not bind the worker unless it is accepted in writing by the worker within six working days. After the expiration of this period, the employee’s acceptance of the amendment proposal is the new executive order directed by the employee to the employer. The employer can terminate the employment contract only after the expiration of six working days. Termination of the employer’s employment contract upon the employee’s acceptance statement after six working days, means implicit rejection of the new icap statement addressed to him.
Checking the valid reason for termination of the amendment should be carried out in two stages. First, there must be a valid reason in the content of the employment contract that makes the change necessary. Therefore, Article 18 of the Law No. 4857. the valid reasons sought for termination in the article must be found exactly in the amendment termination. In other words, in order to terminate the amendment, it is necessary to have a valid reason arising from the competence, behavior or business requirements of the employee. An audit of the stated valid reasons should be carried out exactly here. The weight and size of the audit do not differ. In the audit to be conducted, the mentioned 18.if the existence of a valid reason within the meaning of the article is not determined, the termination of the amendment must be considered invalid before proceeding to the second stage.
If it is determined that there is a valid reason requiring the amendment of the employment contract, at the second stage, it is necessary to check whether the actual proposed contract change is in accordance with the law, the collective bargaining agreement and the principle of moderation, and whether the employee can rightly be expected to accept this offer, in other words, he must accept the offer of changes made to him. In other words, in the second stage, there is an audit of the amendment proposal. In this context, a moderation audit should be carried out mainly according to the characteristics of the concrete event The termination of the amendment may be raised only if it is necessary as a suitable and milder remedy for changing the working conditions and proportionate to the purpose pursued (ultima-ratio). There should be no other organizational or technical or economic measures that will not require changing the working conditions or will require proposing milder working conditions and will make it possible to achieve the same goal. The employer should also, if possible, make a more reasonable offer to amend the contract. If the amendment proposal violates the principle of equal treatment of labor law, the amendment termination is considered invalid, since the employee does not have to put up with this proposal.
According to these statements, in a concrete case, the defendant employer kazimali card located in Corlu completely switched to the minimum wage + part-time wage at work, different wage practices disrupted the workplace peace, so the plaintiff was asked in writing on 01.11.2011 whether this wage change decision was accepted by the plaintiff, the plaintiff informed that it was not accepted, in addition, he argued that the plaintiff was assigned to a workplace in Istanbul Bayrampaşa where there is a fixed wage practice, but the plaintiff was absent from 14-16.11.2011 by not starting his job at this workplace, so the employment contract was terminated without compensation for a justified reason. The plaintiff was decommissioned from 14-16.11.2011. According to the employment contract signed between the parties, dec plaintiff has agreed to work in different workplaces of the employer. Since the plaintiff’s acceptance of this regulation in the employment contract will not give the employer the absolute right to change the plaintiff’s workplace, this authority will have to be used objectively. The employer must prove in our case that the offer of a wage change that was not accepted by the plaintiff is based on a valid reason in accordance with the principles described above. The file is located in Çorlu within the scope of the employer in the workplace, both fixed wage, both fixed fee+ piecework wage workers, the employer to the plaintiff fixed fee+ piecework wage offer that was made is not accepted in writing by the plaintiff on the plaintiff’s application is made of the fixed fee in Bayrampasa assigned to the workplace, however, absent from the scope of the plaintiff’s workplace is constant on going to his file. The plaintiff’s employer in the employment contract signed between the parties, agree to work in the different establishments, in addition to different employers in the same workplace about the purpose of making this change, breaking the peace of the application fee and the application fee to the workplace in order for the plaintiff to accept the defense of new fixed fee that is applied in the workplace about himself as a result of the continued application of the arbitrary assignments of the employer’s management rights Bayrampaşa do not use, for this reason, it was necessary to accept that the amendment of this fee was based on the valid reason that there was no fundamental change in the plaintiff’s working conditions. As such, it is understood that the change of place made by the respondent has been proven to be based on a valid reason and that the plaintiff has the right to terminate the employment contract rightfully in accordance with Article 25/2-g of Law No. 4857 in the face of the fact that the claimant is absent by not going to a new workplace and that it is fixed by the minutes kept. For these reasons described, the claimant’s claims for severance and notice compensation should be rejected, while the acceptance as a result of an incorrect assessment was incorrect and required distortion.
2-The calculation was made by the court without taking into account the fact that the payroll for November 2011 is unsigned and it cannot be proved that it has been paid, in terms of which the buyer will be charged in the expert report based on the judgment.According to the bank statement contained in the file, it is understood that the amount specified in the November 2011 payroll was deposited into the plaintiff’s account.As a result, the decision made without taking into account this payroll is erroneous, and in this regard, the decision made by the court had to be overturned.
CONCLUSION: It was decided unanimously on 06.12.2013 that the appealed decision should be OVERTURNED for the reason written above, and the appeal fee received in advance should be returned to the relevant person upon request.
