T.C.
SUPREME
GENERAL ASSEMBLY OF LAW
E. 2015/9-1598
K. 2017/643
T. 5.4.2017
* LABOR RECEIVABLES (WHERE POOR PERFORMANCE IS NOT AMONG THE JUSTIFIED REASONS FOR TERMINATION / DISRUPTS THE NORMAL FUNCTIONING OF THE WORKPLACE, PREVENTS THE FULFILLMENT OF THE DUTY OF Decisiveness AS REQUIRED AND CONSTITUTES A VALID REASON FOR TERMINATION – THE CLAIMANT’S SEVERANCE AND NOTICE COMPENSATION CLAIMS MUST BE ACCEPTED)
* SEVERANCE AND NOTICE COMPENSATION (IF THE LACK OF PERFORMANCE IS NOT ENOUGH TO CAUSE A JUSTIFIED TERMINATION, BUT DISRUPTS THE NORMAL FUNCTIONING OF THE WORKPLACE, PREVENTS THE FULFILLMENT OF THE OBLIGATION TO SEE WORK AS REQUIRED, AND CREATES A VALID REASON FOR TERMINATION – THE CASE WILL BE ACCEPTED)
• VALID TERMINATION (IF THE EMPLOYEE PERFORMS HIS JOB POORLY OR INADEQUATELY DESPITE WARNINGS IS THE VALID REASON FOR TERMINATION / IF THE PLAINTIFF IS MENTIONED AS MISSING AND PERFORMING HIS WORK DUTY POORLY / IF THE EMPLOYMENT CONTRACT IS TERMINATED FOR A VALID REASON BASED ON POOR PERFORMANCE – SEVERANCE AND NOTICE COMPENSATION CLAIMS WILL BE ACCEPTED)
• POOR PERFORMANCE (NOT INCLUDED AMONG THE JUSTIFIED REASONS FOR TERMINATION / DISRUPTING THE NORMAL FUNCTIONING OF THE WORKPLACE, PREVENTING THE PERFORMANCE OF THE DUTY OF Decisiveness AS REQUIRED AND CREATING A VALID REASON FOR TERMINATION – DOES NOT PREVENT THE EMPLOYEE FROM BEING ENTITLED TO SEVERANCE AND NOTICE COMPENSATION)
4857/m.18,25/2
SUMMARY: The case is related to the claim for labor receivables. The minutes contained in the dossier, which are based on the termination of the employment contract, are related to poor performance, and the defendant employer also announced in its defense that the employment contract was terminated due to the plaintiff’s reduced work efficiency and his refusal to give a defense, and also submitted some documents about poor performance. 25 of the Law No. 4857 entitled “The right of the employer to terminate immediately for a justified reason”. when the article is examined, it is clear that the employee’s poor performance is not one of the reasons for the Decisively organized termination. 18 of the Labor Code No. 4857 on “underperformance”, which is indicated as a reason for termination of the employment contract. the reason for the valid termination is regulated in the article. That will generate a performance bottleneck due to the termination of the right weight, although this is not the normal functioning of the workplace disrupts business debt is the current and one that prevents the fulfillment of the vision, as required by the termination of the cause of termination and severance pay the employee also creates a shape that does not pose an obstacle to being entitled to the severance pay requires the acceptance of the plaintiff’s demands.
On the other hand, in the decision to resist the local court, it was explained that the plaintiff’s employee’s poor performance, which caused the termination of the employment contract, was regulated by Article 25 /II-h of the Labor Code No. 4857, so the employer’s termination was based on a justified reason. Article 25 / II-h of the Labor Code considers the employee’s insistence on not doing the tasks that he is assigned to do, even if he is reminded of them, as a justifiable reason for termination. In turn, the fact that the employee performs his job incompletely, poorly, or inadequately despite the warnings is the valid reason for termination. If the employee does not fulfill his/her duty at all despite the warning, the employer will be able to use the valid right of termination if he/she fulfills his/her duty in an incomplete, bad, inadequate manner for the rightful reason immediately. As it is clear from the minutes contained in the dossier, it is not mentioned that the plaintiff has never fulfilled his obligation to work, but that he is incomplete and poorly executed. Moreover, the condition of insisting on Article 25/II-h of the Labor Code is being sought, and there is no information and documents available within the scope of the file that the plaintiff insists on not doing his duties even though he has been reminded of it. As such, the claimant, whose employment contract is understood to have been terminated for a valid reason based on poor performance, must accept severance and notice compensation claims, as mentioned in the decision to disrupt the Private Office.
CASE: At the end of the trial between the parties for the case of “labor receivables”; Kayseri 2. Dec. 11.10.2012 days and 2011/647 E given by the Employment Tribunal as to whether there is no place to be decided in terms of annual leave, and in terms of severance and notice compensation as to the rejection of the case., 2012/745 K. upon request of the deputy plaintiff to examine the decision on appeal, the Court of Cassation 9. The Law Department has 21.10.2014 days and 2012/36820 E, 2014/30417 K. by his numbered decision;
(… The plaintiff worker, claiming that the employment contract was terminated unfairly, filed this lawsuit with the request to pay the annual leave fee with severance, notice compensation.
The defendant employer argued that he was asked to defend himself due to poor performance, did not give a defense, and his employment contract was terminated due to reduced productivity.He rightly argued that the employment contract was terminated
The court recognized that the termination by the employer was justified, the compensation requests were rejected, and the annual leave fee was accepted.
The decision was appealed to the deputy plaintiff within the legal period.
1-)According to the evidence collected from the articles in the file and the legal reasons on which the decision is based, the plaintiff’s appeals that fall outside the scope of the following paragraphs are not valid.
2-) The defendant’s deputy employer explained in the response petition that the plaintiff’s employment contract was terminated due to poor performance, failure to sign the warning and defense provided, and failure to recognize the management authority. However, in the decision of the disciplinary committee, it is written that he was terminated for the crime of losing raw materials and materials. The defendant employer could not prove that the plaintiff had damaged raw materials and materials. In the matters mentioned in the response petition, only the performance-based document has been submitted. 25 of the Labor Code, although the employee’s poor performance may be the valid reason for termination. among the reasons for the justified termination Dec in the article is the employee’s poor performance. As such, while the plaintiff’s notice and severance pay requests should be accepted, the rejection of the requests in writing was erroneous and required to be overturned.
3-)The annual leave fee was paid during the trial and it is wrong not to observe this situation in terms of trial expenses. In terms of the trial expenses of the deputy plaintiff, the trial expenses should be ruled against the defendant employer, who appealed the decision and caused the lawsuit to be filed…),
At the end of the retrial, the court resisted the previous decision by overturning the decision on the grounds that the file had been reversed instead of reversed.
After it was understood that the decision to resist was appealed during the examination by the General Assembly of the Law and the papers in the file were read, the requirement was discussed:
Verdict : defendant plaintiff’s attorney that his client is in the workplace “hole working as a machine operator, and reduces the strength of the labour contract with justification for signing the minutes of the work that have been unfairly terminated, performance issues, severance pay an annual permit fee of abstract and unreal, with justification, saying it was from the defendant is asked to decide on the collection.
The attitude of the plaintiff that the defendant employer’s representative in the workplace, the work efficiency lowers defense and warning given to him by refusing to sign an employment contract the employer doesn’t recognize the authority of the directors of the disciplinary board that have been terminated for good cause by, because of, therefore, defended the dismissal of the case by declaring that plaintiff is entitled to severance pay.
The defendant in the statement of the witnesses of the plaintiff by the court listened 500 PCs per day on average, while another stating that the office had received an offer from steel drilling hole after hole they declare 240 a daily break to pieces, and for this reason the Disciplinary Board of an employment contract with the employer is terminated by a termination is made within 6 business days, where there is a justifiable reason for the termination by the employer is based on the reason that the denial of severance compensation claims, the job of the receivables were paid annual leave during trial by stating that this is not the place for it was decided that a decision regarding the request.
Upon the appeal of the plaintiff’s attorney, the judgment was overturned by the Special Department on the grounds described in the title section above.
Prior to reversal by the court of justification by repeating the Supreme Court and the decision of the worker’s performance on the job as mentioned in the law of 25/II-h in the item takes place, the plaintiff could qualify for severance pay who do not fulfill the task properly on the grounds that warrant reversal of the Supreme Court of subparagraph (2) is located in the previous in terms of the cause of ruining stand in judgment, the plaintiff’s attorney has appealed the decision.
The dispute that comes before the General Assembly of Law through resistance is brought to the point of whether the termination made by the respondent employer is based on a justifiable reason or not, and whether the plaintiff can be entitled to severance and notice compensation according to the conclusion that will be reached from here.
24 and 25 of the Labor Code No. 4857. its articles regulate the cases of immediate termination of the employment contract by the employee and the employer for a justified reason.
25 of the Law No. 4857 entitled “The right of the employer to terminate immediately for a justified reason”. the substance:
“The employer may terminate the employment contract before the end of the period or without waiting for the notification period in the following cases, with or without a certain period of time:
I-) Health reasons:
a)the worker’s own caste or tidy, non-life or from a disease or disability resulting from addiction to booze in the case of the absence, therefore, to be born in one to three business days after another for no more than five working days or in a month,
b-)If it is determined by the Health Board that the disease in which the employee is being held is incurable and that there are inconveniences in his/her work at the workplace,
(a) the right of the employee to terminate the employment contract without notice for the employer in cases such as illness, accident, childbirth and pregnancy, except for the reasons listed in subparagraph; 17 in accordance with the working time of the employee in the workplace of the specified cases. it is born after the notification periods in the article exceed six weeks. In cases of childbirth and pregnancy, this period is 74. it begins at the end of the period in the article. However, due to the suspension of the employee’s employment contract, he will not be charged for periods when he cannot go to work.
II- Cases that do not comply with the rules of morality and goodwill and the like:
a-) The employee misleads the employer by claiming that they do not have the necessary qualifications or conditions for one of the main points of this contract at the time of the employment contract, or by saying untrue information or words, even though they do not have them,
b-) The employee, the employer or one of their family members makes words or acts that will touch the honor and honor, or makes unfounded denunciations and accusations that offend the honor and dignity of the employer,
c-) The employee sexually harasses another employee of the employer,
d-) The employee mocks the employer or one of his family members or another employee of the employer, arrives at the workplace drunk or having taken drugs, or uses these substances at the workplace,
e-)The employee commits acts that do not comply with accuracy and commitment, such as abusing the employer’s trust, stealing, revealing the employer’s professional secrets,
f-)An employee commits a crime at work that is punishable by more than seven days in prison and whose punishment is not postponed,
g)the consent of the employer or the worker two days in a row without a valid reason, or any holiday twice in one month from the day of the next business day, or ceased to work three days in a month,
h-) The employee insists on not doing the tasks he is assigned to do even though he has been reminded of them,
i) Endangering the safety of the work due to the worker’s own will or extravagance, causing damage and loss to the extent that machines, installations or other items and items that are or are not the property of the workplace but are in his hands cannot be paid with the amount of his thirty-day wage,
III- Compelling reasons:
The emergence of a compelling reason that prevents the employee from working at the workplace for more than a week,
IV-17 of absenteeism in case of detention or arrest of the worker. exceeding the notification period in the article,
18, 20 and 21 with the claim that the termination of the employee is not in accordance with the reasons provided for in the above paragraphs. within the framework of the provisions of the article, he can apply to the judicial path.it is arranged as ”.
25 of the Labor Code No. 4857. in paragraph (II) of the article, cases that do not comply with the rules of morality and good faith are listed and it is explained that the employer has the opportunity to terminate the employment contract for a justified reason in the presence of the specified situations and the like.
A concrete dispute, the defendant in the workplace “hole plaintiff of the labour contract worker working as a machine operator, have signed protocols on the grounds that it unfairly denied a decrease in performance and revoked the defendant employer’s representative in the workplace reduce the efficiency of the plaintiff and defense warning given to the employer by refusing to sign because it doesn’t recognize the authority of the Disciplinary Board of directors for cause upon termination of an employment contract with that have maintained. There are two minutes entitled incident explanation document within the scope of the file and in the minutes dated 24.11.2011 on inefficient operation, it is written that the plaintiff stopped the machine while he had to wash, refused to give a defense due to this incident, his intention was to take compensation and leave when he was interviewed by the staff, he had been warned twice before. Impairment of production dated 07.12.2011 on in the proceedings, the plaintiff’s only a 9 hour work shift to drill glass have been found to be 200 pieces production because this event therefore refrain from providing 9 hours of work for that defense should take place at least 900 241 performs as when the drilling operation, serious dysfunction was indicated in question. The resolution of the Disciplinary Board dated 03.12.2011 dated 24.11.2011 report to the shift supervisor, according to the plaintiff “from the refusal of unproductive labour and defence” for a sentence of condemnation, given in the disciplinary committee’s decision dated 13.12.2011, according to the decision of the meeting of the Disciplinary Board dated 03.12.2011, according to a report by the supervisor of the shift and the plaintiff’s employment law dated 07.12.2011 25. article II. it has been decided to terminate the employment contract within the scope of the subparagraph. The defendant’s witnesses, who were heard, declared that the plaintiff was considering quitting his job for this reason, while he had to drill 500 holes in the machine he was working on recently, he had reduced his performance by half, and for this reason, his employment contract was terminated.
The file is located under an employment contract and termination of slow performance shown is based on the transcripts, that is, the employer also reduce the efficiency of the plaintiff and defendant refrain from providing Defense Defense denied due to the fact that upon termination of the employment contract ,a part of the documents presented again slow performance. 25 of the Law No. 4857 entitled “The right of the employer to terminate immediately for a justified reason”. when the article is examined, it is clear that the employee’s poor performance is not one of the reasons for the Decisively organized termination. 18 of the Labor Code No. 4857 on “underperformance”, which is indicated as a reason for termination of the employment contract. the reason for the valid termination is regulated in the article. That will generate a performance bottleneck due to the termination of the right weight, although this is not the normal functioning of the workplace disrupts business debt is the current and one that prevents the fulfillment of the vision, as required by the termination of the cause of termination and severance pay the employee also creates a shape that does not pose an obstacle to being entitled to severance pay, while the demands of plaintiff’s denial of the acceptance of the decision is incorrect.
On the other hand, in the decision to resist the local court, it was explained that the plaintiff’s employee’s poor performance, which caused the termination of the employment contract, was regulated by Article 25 /II-h of the Labor Code No. 4857, so the employer’s termination was based on a justified reason. Article 25 / II-h of the Labor Code considers the employee’s insistence on not doing the tasks that he is assigned to do, even if he is reminded of them, as a justifiable reason for termination. In turn, the fact that the employee performs his job incompletely, poorly, or inadequately despite the warnings is the valid reason for termination. If the employee does not fulfill his/her duty at all despite the warning, the employer will be able to use the valid right of termination if he/she fulfills his/her duty in an incomplete, bad, inadequate manner for the rightful reason immediately. As it is clear from the minutes contained in the dossier, it is not mentioned that the plaintiff has never fulfilled his obligation to work, but that he is incomplete and poorly executed. Moreover, the condition of insisting on Article 25/II-h of the Labor Code is being sought, and there is no information and documents available within the scope of the file that the plaintiff insists on not doing his duties even though he has been reminded of it.
As a result, it was not right for the plaintiff, who apparently terminated the employment contract for a valid reason based on poor performance, to be refused while the severance and notice compensation claims should be accepted, as mentioned in the decision to disrupt the Private Office.
However, it is written that he was terminated for the crime of wasting raw materials and materials in the decision of the disciplinary committee “contained in the decision to disrupt the Special Department”. Although the defendant employer could not prove that the plaintiff had damaged raw materials and materials,” the statement said, “Although the employee’s poor performance may be a valid reason for termination, Article 25 of the Labor Code. the item is held in right of workers among the reasons for the termination is located on a performance bottleneck ” in the expression “in the phrase” material of a mistake based on involvement in the decision by the understanding of the specified sentences with “is” should be removed from the decision of the phrase and the “IS” of the phrase, “not” that should be accepted by the General Assembly in the form of law, since these different deteriorate with justification must resist the decision.
CONCLUSION: It was decided unanimously on 05.04.2017 that the decision to resist would be OVERTURNED for these different reasons and reasons shown above by accepting the appeals of the plaintiff’s deputy, and that the advance fee of the appeal would be returned to the depositor if requested, with the decision closed to correction.
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