Summary:
The plaintiff’s complaint against the employer about being subjected to mobbing is covered by the right to complain, which is a constitutional right. If the complaint is a use of a right, it cannot be a justified or valid reason for termination unless it is an attack on libel or personal rights, and the court’s decision to dismiss the case in writing with an erroneous assessment instead of accepting it is the reason for the violation.
T.C.
Supreme
- law office
Mainly No:2014/1440
Decision No:2014/13116
K. Historical:
CASE : The plaintiff requested that the termination be invalidated and that his/her return to work be decided.
The local court has decided to dismiss the case.
Although it was appealed by the plaintiff’s 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:
Y A R G I T A Y K A R A R I
A) Summary of the Plaintiff’s Request:
Deputy plaintiff; 05.01.2011 your client-responsible for sales and marketing in the workplace working as on 02.04.2012 to the respondent, the plaintiff verbally communicated to management as mobbing in the workplace that are applied to the solution increased the pressure to resign instead of a notary public, dated 23.02.2012 sent through a pink slip events that have been the problems being solved on 28.03.2012 you filed a complaint to the public prosecutor in Istanbul on the complaint by the plaintiff’s employment contract with a cease and desist letter dated 02.04.2012 justifying 4857/25-II-b is terminated pursuant to Article, he declared that the fact that he had filed a complaint with the statement did not give the employer the right to terminate for a justified reason, and demanded that the invalidity of the termination and the return of the plaintiff to work be decided, as well as compensation.
B) Summary of Respondent’s Response:
The defendant attorney; 20 customer visits were made per week, the plaintiff stated that he could perform 15 of the number of visits with a bet because he was being treated for varicose veins, he made 8 customer visits between 6-14 dec 02.2012, he sent a warning on 23.02.2012 while he was at rest, he worked late at night, asked for a defense of harassment, he was forced to resign, the plaintiff once stated that he was working overtime with a letter on 17.12.2011 that you have been warned to comply, Dated 14.2.2012 to the defense of the answer is given notarial dated 1.3.2012 with the pink slip, dated 27.03.2012 warning being reminded of what is expected, where acts would continue instead of the persistence of odevli getirmemek clarified that it was decided to end with a win on 02.04.2012 of employment, plaintiff of the labour law 4857 25/II, the labor contract has been terminated in accordance additionally, if attributed found in the notice and the employer’s representative about the unfounded, the case will be dismissed for the reasons described that should have argued.
C) Summary of the Decision of the Local Court:
Mobbing has been proven by the court the claim of the plaintiff, the plaintiff’s other workers remains a constitutional right which is within the scope of human rights the right to complain, although the complaint process, at the stage of inquiry, the defendant issued by the employer notices, warnings, and considering the writings of Defense, the plaintiff’s behavior and lead to negativity in the workplace is to be expected in terms of continuing the business relationship of the employer where the employer to terminate the employment contract on the grounds that it is based on valid reasons for the behavior of workers arising from the case is dismissed.
D) Appeal:
The decision was appealed by the acting plaintiff.
E) Justification:
A concrete case in the plaintiff’s employment contract; 20 a week, which is the customer fails to fulfill the number of visits, illness due to the plaintiff’s suggestion of this number reduced to 15%, although below that of the plaintiff to visit, also about the plaintiff’s general manager due to a criminal complaint with the public prosecutor to charge unfounded, 4857 m.It is terminated in accordance with 25/II.
According to the contents of the file, it is understood that the plaintiff was first asked to defend herself on 14.02.2012 that she had not made the client visit she was supposed to make weekly, and the termination was made on 02.04.2012. The plaintiff needs to do weekly 20 the number of customer visits in the pre-objective, tangible, measurable data in a file which has been identified as communicated to the plaintiff does not have an about as the expected number of dropped him to visit due to illness of the plaintiff, the plaintiff and the defense to be visited during the performance of the receipt of the termination process is protected when measured objectively recognised’s not enough time for, it has been understood that a period of approximately 2 months may not be considered sufficient to measure the plaintiff’s performance, so the reason stated in the termination notice is not in place.
It was noted that the plaintiff was forced to resign at work on 28.03.2012 on charges of mobbing, was pressured to increase the number of visits and was constantly monitored, and the General Manager was subjected to humiliations against him in the form of “unskilled employee, you don’t even have a desk”, and filed a criminal complaint with the Public Prosecutor’s Office. It is understood that the plaintiff’s making unfounded accusations in the notice of termination was also made as a reason for termination. As a result of the investigation, it was decided that the allegations were not supported, the legal elements of the crime were not formed, and there was no room for prosecution, stating that he could sue the Employment Courts about the content of the tip remaining within the scope of mobbing. The plaintiff’s complaint against the employer about being subjected to mobbing is covered by the right to complain, which is a constitutional right. The complaint was filed; the use of a right, on the other hand, is the reason for the violation of the decision to dismiss the case in writing with an erroneous assessment instead of acceptance by the court, ignoring that it cannot be a justified or valid reason for termination unless it is defamatory or offensive to the rights of a person.
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.
PROVISION: For the reasons mentioned above;
1-The above-mentioned date and number of the court’s decision to be OVERTURNED AND ELIMINATED,
2-INVALIDITY of the TERMINATION made by the employer and RETURN of the plaintiff TO WORK,
3-Although the plaintiff applies 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 four-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 and is born until the decision is finalized, if the claimant starts work, the notice and severance pay, 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 at the date of the decision, the power of attorney fee of 1,500 TL should be taken from the defendant and given to the plaintiff,
7-The trial expense of 329.00 TL made by the plaintiff is taken from the defendant and given to the plaintiff, leaving it above the trial expense made by the defendant,
8-It was decided by unanimous decision on 17.04.2014 to return the appeal fee received in advance to the interested party upon request.
