9th Civil Chamber 2020/1848 E. , 2020/7866 K.
“Justice Text”
COURT: Labor Court
TYPE OF CASE: CREDIT
In the petition dated 03.06.2020 submitted by the plaintiff’s attorney, it was claimed that the annulment decision of our Chamber dated 13.02.2020 and numbered 2016/13686 E. and 2020/2140 K. was based on a material error, and it was requested that the decision be annulled and the verdict be affirmed.
Our Department decided to use the termination authority within the six working-day period of disqualification stipulated in Article 26 of the Labor Law No. 4857.
After listening to the report prepared by the Investigation Judge for the case file, the file was examined, and the necessity was discussed and considered.
Y A R G I T A Y A R A R I
Summary of Plaintiff’s Claim:
The plaintiff’s attorney stated that the plaintiff worked as a butcher at the defendant’s workplace between 27.03.2008 and 13.06.2014, with a net salary of 1.550.00 TL. Claiming that his employment contract was terminated for wrongful reasons, he demanded the collection of severance and notice indemnities and overtime receivables from the defendant.
Summary of Respondent’s Response:
The defendant’s attorney demanded the dismissal of the case, arguing that the negative behavior of the plaintiff had become permanent, that he had insulted the foreman and the department supervisor on 26.05.2014, the last time he had insulted him as “a jerk”, and that he had attacked his chief, that the plaintiff accepted this matter and that his employment contract was terminated with just cause.
Summary of Court Decision:
Based on the evidence gathered and the expert report, the court decided that the plaintiff’s last dressed gross wage was 2,438,11 TL, based on the evidence collected and the plaintiff worked for the defendant company for 6 years, 2 months and 17 days between 27/03/2008 -13/06/2014. It is not possible to prove that the seniority, notice and overtime receivables calculated by the expert that he is working with could not be proven, the employment contract was terminated after the plaintiff insulted a colleague by calling him a “lazy”, but the word said as a result means “lice cub” in the Turkish language. It was decided that the case be partially accepted on the grounds that the termination was not in accordance with the weight of the word, since it is an issue to be resolved with a warning and warning, and the termination is unfair and requires compensation.
Appeal:
The plaintiff’s attorney appealed the decision.
Reason:
1-According to the evidence gathered from the articles in the file 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- It is a matter of dispute between the parties whether the employment contract has been terminated within the period of disqualification.
In the event that justified reasons for termination arise in terms of the employee or the employer, the period of use of the right to terminate the contract by the other party of the employment contract is not unlimited. In this regard, in Article 26 of the 4857 Labor Law, two separate periods are stipulated, based on the date the employer learned and the date on which the event took place. The termination of the employee or employer, who does not take the way of termination within these periods, does not result in a justified termination. This period is determined in the Law as six working days from the date of teaching of the event that caused the termination, and probably one year from the date of the act.
While a similar regulation was included in Article 18 of the Labor Law No. 1475, it was stipulated in the Labor Law No. 4857 that the 1-year period would not run if the worker had a financial interest in the event. In that case, if the employee had a material benefit in the event that caused the justified termination, the employer has the right to terminate the event, provided that six working days have passed, no matter how long the event has passed.
The six-day period starts to run from the day the employee or employer learns of the event that caused the rightful termination. The day of learning of the event is not counted and the right of termination authority ends at the end of the sixth day by counting the following business days.
In case the employer is a legal person, the six-day period starts from the day the competent authority learns about the termination. Conducting an inspector investigation on this matter and discussing the incident by the disciplinary committee do not start the period. The day when the event is referred to the authorized person or board constitutes the beginning of the six-day period.
The one-year period, in any case, starts from the day the event occurred.
The periods of six working days and one year stipulated in Article 26 of the Labor Law No. 4857 are separately deprivation of rights. In other words, the right of termination must be exercised within six business days from learning and within one year from the occurrence of the event. The expiration of even one of the periods eliminates the possibility of rightful termination.
Even if the parties do not put forward due to the nature of the impeachment period, the judge has to take it into account ex officio.
The party exercising the right of termination without notice after the periods specified in this article will be deemed to have unjustly terminated the contract, and therefore, the notice indemnity and severance pay if the conditions are met.
n is responsible.
In concrete conflict; It is fixed that the plaintiff called his supervisor Muharrem, with whom he worked at the defendant Company, “a liar” and a “coward”, and that his employment contract was terminated for this reason.
The termination made by an employee of the employer due to these words of teasing-insulting another employee is justified. It is also clear that the definition of “cowardly” is used as an insult among the people.
In the context of this determination, although the acceptance of the demands for severance and notice pay is erroneous on the grounds that the Court’s definition of “incompetent” is not insulting based solely on the dictionary meaning, first of all, it should be clarified whether the defendant employer’s power of termination was exercised within the 6-work-day deprivation period stipulated by Article 26 of the Law No. 4857. needs to be achieved.
From the file content; The basis of the termination is that the incident took place on 26.05.2014, the defense of the plaintiff was received on the same day and he accepted the actions subject to termination here, however, the notice of termination was sent by the employer on 13.06.2014 and his dismissal was shown in the records as 13.06.2014, the termination authority stipulated by the Law. It has been observed that it has not been used within the 6 working-day deprivation period.
In this case, the task to be done by the Court is to investigate the learning date of the authority authorized to terminate and to clarify whether the termination authority has been exercised within the legal period, according to the result, if it is determined that it has been used within its time, the severance and notice indemnity will be rejected. is the decision to accept.
As a result; Coming to a conclusion with an erroneous assessment based on incomplete research required disruption.
Conclusion:
It was unanimously decided on 15.09.2020 that the appealed decision be OVERFINED for the reason written above, and that the appeal fee paid in advance be returned to the concerned person upon request.
