T.C. SUPREME
9.law office
Based on: 2016/36192
Decision: 2018/998
Date of Decision: 23.01.2018
CASE OF RETURN TO WORK – THE PLAINTIFF HAS BEEN WORKING FOR MORE THAN FIVE YEARS – TERMINATION BY THE EMPLOYER IS NOT BASED ON A VALID REASON – ACCORDING TO THE SENIORITY OF THE EMPLOYEE AND THE REASON FOR TERMINATION, THE COMPENSATION FOR NON-START OF WORK MUST BE DETERMINED AT THE RATE OF THE PLAINTIFF’S FIVE-MONTH SALARY
ABSTRACT: Since it is understood that the plaintiff has worked for a total of more than 5 years, the employment contract has been terminated due to lack of performance, and the termination performed by the employer is not based on a valid reason, it is appropriate to decide on the invalidity of the termination and the plaintiff’s return to work. However, according to the seniority of the plaintiff employee and the reason for termination, it was not found correct for the court to determine the compensation for non-employment in the amount of the plaintiff’s 4-month salary. Determining this compensation at the rate of the plaintiff’s 5-month fee will be in accordance with the contents of the file.
(4857 P. K. m. 21) (2821 p. K. m. 31) (9. HD. 08.04.2008 T. E. 2007/27773 2008/7819 K.)
Case: The plaintiff requested that the decision be made on the invalidity of the termination, the return to work and the legal consequences.
The local court has decided to accept the case.
Although the parties were appealed by their lawyers 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 DECISION OF THE SUPREME COURT
A) Summary of the Plaintiff’s Request:
In summary, the plaintiff’s deputy requested that the plaintiff work in the defendant company as an employee, that the employment contract was terminated as invalid and unfair, that the idle time fee of 4 salaries and the non-start compensation of 8 gross salaries be decided in the petition of the plaintiff.
B) Summary of Respondent’s Response:
In summary, the defendant’s deputy requested the dismissal of the case in his reply petition, arguing that the termination of the plaintiff’s employment contract is based on a valid and justified reason.
C) Summary of the Decision of the Local Court:
In the evaluation of the evidence collected by the court and the entire scope of the file; more than six months with an indefinite term employment contract by the defendant of the plaintiff worked for the defendant in the eyes of more than thirty is the number of workers, according to the date of termination of an employment contract case opened within the thirty day period, the employer’s representative of the whole of the plaintiff’s work without that oversaw the defendant by the employer, the worker’s termination and the process of termination of an employment contract the plaintiff, labor law, dismissal procedures and procedure, since it was understood that it was not in accordance with the principle of equal treatment between employees and termination as a last resort, it was decided that in terms of the plaintiff’s request, the non-employment compensation would be decided according to the acceptance of the subsidized case and the idle time fee in the amount of four salaries and seniority (more than 6 months) Dec
D) Appeal:
The decision was appealed by the plaintiff and the defendant.
E) Justification:
Stating that the employment contract was terminated by the respondent employer without valid reason, the plaintiff employee requested that the termination be invalidated and a decision be made on his return to work.
The court decided on the invalidity of the termination and the return of the plaintiff employee to work, while the compensation for non-initiation of work was determined in the amount of 4 monthly wages of the plaintiff employee.
21 of the Labor Code No. 4857. in accordance with the article, when the court decides that the termination is invalid, if the employee is not hired by the employer within a month upon application, compensation in the amount of at least 4, at most 8 monthly wages to be paid to the employee must be determined.According to the established practice of our department, this compensation, which is an employment guarantee, should be determined taking into account such factors as the seniority of the employee, the reason for termination. The lower and upper limits of the substance cannot be exceeded. The only exception to exceeding the upper limit is Article 31 of the Trade Union Code No. 2821. these are the denunciations made for the trade union reason in the article. In this article, it is explained that the compensation for non-employment in the case of a trade union cause will be determined in the amount of at least one annual wage of the employee. The practice of our apartment is in this direction. (08.04.2008 day and Decision No. 2008/7819, based on 2007/27773).
Our apartment is about annual paid leave 53. taking into account the seniority periods in the article
for a worker with decency between 6 months and 5 years, 4,
for a worker with decency between 5 years and 15 years, 5,
it provides for the determination of compensation for non-employment in the amount of 6 monthly wages for an employee with a seniority of more than 15 years, the maximum limit for these amounts is up to 8 months, depending on the reason for termination.
According to the contents of the file, in a concrete dispute, the plaintiff employee started work at the defendant’s workplace with an indefinite-term employment contract dated 06.10.2010 between the plaintiff employee and …….and the defendant employer as of 01.07.2012 ………. the plaintiff employee is working ….. since it is understood that the employment contract was transferred on 01.07.2012 due to the purchase, so the plaintiff worked for a total of more than 5 years, from 06.10.2010 to 09.10.2015, the employment contract was terminated due to lack of performance, the termination by the employer was not based on a valid reason, it is decisively decided that the termination is invalid and the plaintiff is returned to work. However, according to the seniority of the plaintiff employee and the reason for termination, it was not found correct for the court to determine the compensation for non-employment in the amount of the plaintiff’s 4-month salary. Determining this compensation at the rate of the plaintiff’s 5-month fee will be in accordance with the contents of the file.
In accordance with Article 20/3 of the Labor Code No. 4857, our Department has decided as follows.
Provision: On the grounds described above;
TO OVERTURN AND ELIMINATE the court’s decision,
INVALIDITY of TERMINATION and RETURN of the plaintiff TO WORK,
Despite the plaintiff’s application within the legal period, the amount of compensation that must be paid if the defendant is not hired by the employer within the time limit will be determined in the amount of the plaintiff’s 5-month gross wage at discretion, taking into account the plaintiff’s seniority, the reason for termination,
If the plaintiff applies to the employer within the time limit for the return of the employee to work, which will be entitled to, and up to a maximum of 4 months until the decision is finalized, his wages and other rights MUST be collected from the defendant,
Since the fee is received in advance, there is no place for its re-receipt,
274.50 TL of the trial expenses made by the plaintiff are collected from the defendant and given to the plaintiff, leaving the defendant above the trial expenses made,
The fee of TL 2,180.00 determined according to the tariff in force at the date of the decision is to be taken from the defendant and given to the plaintiff,
Upon request, the appeal fee received in advance will be refunded to the relevant person,
It was definitively decided by unanimous decision on 23.01.2018.
