- Law Office
Base Number: 2016/1423
Decision Number: 2019/11167
“Justice Text”
COURT: LABOR COURT
The decision made as a result of the lawsuit between the parties was requested by the plaintiff’s attorney to be examined on appeal, and it was understood that the appeal requests were in time. After listening to the report prepared by the Investigation Judge for the case file, the file was examined, the need was discussed and considered:
JUDICIARY DECISION
A) Summary of Plaintiff’s Request:
The plaintiff’s attorney stated that his client was working as an occupational safety specialist affiliated to the quality directorate in the defendant company between 10/02/2014-07/07/2014, on groundless grounds such as being incompatible with his colleagues, having communication problems, having conversations with his manager that did not comply with the framework of respect, and not completing his duties. Claiming that she was fired from her job and that the real reason was her pregnancy, she asked the defendant to collect compensation for discrimination and overtime wages due to violation of the principle of equal treatment.
B) Summary of Respondent’s Response:
The attorney of the defendant stated that the plaintiff worked as a workplace safety expert between 10/02/2014-07/07/2014, had problems in harmony and communication with his colleagues despite being warned verbally from time to time, spoke out of respect towards his manager and did not complete his duties for this reason. arguing that she was dismissed from her job and that she was dismissed due to pregnancy was not true, and requested the dismissal of the case.
C) Summary of Local Court Decision:
Based on the evidence collected and the expert report, the court decided that the plaintiff’s claim that the claimant worked overtime proved, that the service contract was actually terminated maliciously due to the plaintiff’s pregnancy, that the plaintiff’s witnesses should prove the claim, but that the information on the subject is based on the plaintiff’s hearing. Apart from this, there is no sufficient evidence to accept that the claim has been proven, the statements of the plaintiff’s witnesses based on their own feelings from the plaintiff are not sufficient to accept that the allegation has been proven, moreover, it is stated from the statements of the defendant’s witnesses that most of the personnel working in the workplace are women and there are even those who gave birth among them, therefore the plaintiff’s It was decided that the case be partially accepted on the grounds that the claim that the contract was violated in violation of the principle of equality and that the contract was terminated in bad faith was not respected.
D) Appeal:
The plaintiff’s attorney appealed the decision.
E) Reason:
1-According to the articles in the file, the collected evidence and the legally compelling reasons on which the decision is based, the plaintiff’s appeals that fall outside the scope of the paragraph below are not appropriate.
2-The dispute is gathered at the point of whether the employer has acted against the obligation of equal treatment and the consequences of this.
The principle of equal treatment is valid in the entire field of law, and in terms of labor law, it imposes an obligation on the employer not to behave differently among the workers working in the workplace unless there is a just and objective reason. In this respect, the employer’s right to manage is limited. In other words, the employer’s prohibition of discrimination prohibits arbitrary discrimination among workers in the workplace. However, the obligation of equal treatment does not require all workers to be brought to the same situation without any discrimination, and it aims to prevent the different treatment of workers in equal status.
“Principle of Equality” in the most basic sense, T.C. It is stated in the 10th and 55th articles of the Constitution, and in the 10th article, the rule “Everyone is equal before the law without any discrimination based on language, color, gender, political thought, philosophical belief, religion, sect and similar reasons” is included. The margin title of Article 55 is “Ensuring Justice in Wages”.
Furthermore, the principle of equal treatment has also been addressed in various ways in the Universal Declaration of Human Rights, the European Convention on Human Rights, the European Social Charter, the Treaty of the European Economic Community, and the Conventions and Recommendations of the International Labor Organization.
In Article 15 of the Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the Implementation of the Principle of Equal Treatment and Equal Opportunity for Women and Men in Employment and Professional Matters, titled “Returning from Maternity (Maternity) Leave”, it is stated that “a woman on maternity leave, The employer has the right to return to work or an equivalent position under conditions and conditions that are not more disadvantageous for him after the end of his leave and to benefit from all kinds of improvements in working conditions that he will benefit from during his absence.
In the systematic of the Labor Law No. 4857, the obligation of equal treatment has taken its place among the obligations of the employer in general. On the other hand, in Article 5, which regulates the principle of equality, an absolute obligation of equal treatment is not regulated in all cases. In certain situations, the employer has an equal treatment obligation.
moment has been mentioned. In the decisions of our Chamber, it is emphasized that this obligation does not exist unless “there are fundamental reasons” and “biological or work-related reasons make it compulsory” (Court of Appeals 9.HD. 25.7.2008 day 2008/ 27310 E, 2008/ 22095 K.).
In the presence of objective reasons for the employer to apply different practices among the workers, it cannot be mentioned that there is a violation of the equal treatment debt (Supreme Court of Appeals 9.HD. 2.12.2009 day, 2009/33837 E, 2009/32939 K).
In the first paragraph of Article 5 of the Law No. 4857, discrimination based on language, race, gender, political thought, philosophical belief, religion and sect is prohibited. All of these mentioned issues should be considered within the scope of the absolute prohibition of discrimination. In order for the principle of equal treatment to be applied, it is necessary to be the workers of the same workplace, to have a community in the workplace, to have a collective practice, to work together with a union and with an employment contract.
In the second paragraph of Article 5 of the law, the prohibition of making different transactions between the full-time – part-time worker and the fixed-term – indefinite-term worker was envisaged, in the third paragraph, a prohibition of discrimination on the grounds of gender and pregnancy was regulated, and the employer’s equal treatment at the termination of the employment contract for the workers in this situation. debt highlighted. However, it is explained in the aforementioned provision that the employer may act differently due to the nature of the job and biological reasons.
Again, in the fourth and fifth paragraphs of the mentioned article, it is mentioned that the employer cannot discriminate during the performance of the wage payment obligation. It is stated that the wage mentioned here is the wage in general and the bonuses, premiums etc. that are not included in the wage. It is clear that it also includes payments.
Furthermore, the prohibition of discrimination based on trade union reasons mentioned in sub-paragraphs (a) and (b) of the third paragraph of Article 18 of the Law No. 4857 should also be evaluated within the scope of absolute prohibition of discrimination. The cases listed in Article 5 and the third paragraph of Article 18 of the law are not regulated as restrictive. The prohibition of discrimination can be added to this, due to the employee’s sexual preference, which does not cause adverse effects in the workplace. Again, discrimination based on factors such as political reasons and worldview should not be protected.
The sanction of the employer’s violation of the obligation of equal treatment is regulated in the sixth paragraph of the 5th article of the mentioned Law. According to the aforementioned provision, the worker has the opportunity to demand his/her deprived rights apart from a wage equal to his/her wages up to four months. Since the text of the aforementioned paragraph is imperative, the contractual rules that are contrary to the aforementioned provision are invalid. The rule gap arising due to invalidity should be filled in accordance with the requirements of the principle of equal treatment.
Although the burden of proving the violation of the obligation of equal treatment is on the worker, according to the regulation in the last paragraph of the aforementioned article, when the worker presents a strong evidence of the existence of the violation, the opposite must be proven by the employer.
In concrete conflict; In the lawsuit petition, it was claimed that the plaintiff was dismissed unjustly, that the real reason for the termination was the pregnancy of the plaintiff and that he was discriminated against, and it was demanded that compensation for violation of the principle of equality specified in Article 5 of the Law No. 4857 was ordered.
According to the file content and e-mail correspondence, the plaintiff worker did not have any work that caused problems in the workplace, on the contrary, his work was appreciated by the manager, the plaintiff notified the defendant employer of his pregnancy with a hospital letter dated 04.07.2014, and then the manager of the plaintiff wrote to the workplace human resources directorate on 05.07.2014. In the letter dated 07.07.2014, it is understood that it was stated that the plaintiff did not want to work with him on the grounds that there was no efficiency, and thereupon, the employment contract was terminated by the employer on 07.07.2014.
According to the existing evidence in the file, it is understood that the employment contract was terminated due to discrimination due to the pregnancy of the plaintiff, and the conditions for the compensation for discrimination have been met. The defendant employer, on the other hand, could not prove that there was no violation according to the last paragraph of Article 5 of the Law No. 4857. Considering the length of service of the plaintiff, it is wrong for the court to decide to reject the claim for compensation while it is necessary to award compensation for discrimination within the scope of Article 5 of the law.
F) Result:
It was unanimously decided on 15.05.2019 that the appealed decision be OVERFINED for the reasons written above, and that the appeal fee paid in advance would be returned to the relevant person upon request.
