T.C SUPREME COURT
22.law office
Basis: 2016 / 11845
Verdict: 2016 / 14174
Decision Date: 10.05.2016
INVALIDITY OF TERMINATION AND CASE OF RETURN TO WORK – TERMINATION OF THE EMPLOYMENT CONTRACT ON THE GROUNDS THAT THE PLAINTIFF WORKING AS AN ASSEMBLY WORKER SMOKES IN THE LADIES’ TOILET – ENDANGERING THE SAFETY OF THE WORK DUE TO THE EMPLOYEE’S OWN WILL AND REFUSAL – TERMINATION WITH JUST CAUSE
SUMMARY: In terms of the concrete case, while it should be accepted that the defendant employer terminated the employment contract of the plaintiff employee for a just reason based on the reason “the employee jeopardizes the safety of the job due to his own will and refusal …”, the court’s decision on the invalidity of the termination and the acceptance of the request to return to work should be eliminated by overturning it.
(4857 Pp. K. m. 20, 25, 28)
Lawsuit: The plaintiff has requested that the invalidity of the termination and the return to work be decided.
The court partially granted the request.
Although the defendant was appealed by his lawyer during the sentencing period, the file was examined, discussed and considered as necessary:
Decision: The plaintiff’s attorney, the defendant’s workplace as of 04.09.2007 working as an assembly worker as of the employment contract of the plaintiff, the defendant employer 23.03.2015 as of 27.03.2015 on the grounds that he smoked in the ladies’ toilet at work on 25 / II-i of the Labor Law No. 4857 as of 23.03.2015. provided in paragraph “jeopardize the security of the worker’s own desire and savsamas job because…” because of termination by the employer do not necessarily reflect the truth of the cause of termination, and the termination invalid on the grounds that the termination was unlawful, to return to work, idle with the claim of the worker to the employer monthly fees apply last four, although the job does not start to go to work in case of compensation to be determined whether that be decided not provided four monthly wage is less than the amount requested.
The defendant’s attorney, the defendant, the plaintiff’s due to an employee who works for 04.09.2007 at work since seven and a half years they are brought in know the rules and regulations relating to smoking in the workplace, the introduction of a smoking ban in all areas outside the canteen at work, and education regarding occupational health and safety training to all employees periodically repeated in all were reported extinguished by being reminded of all the butts and warning signs have not been good because the risk of causing a fire in the workplace; smoke in the bathroom of the plaintiff, that the defendant company D… T…he saw himself Occupational Health and safety specialist and edit the record about the event and the receipt of a defense, the plaintiff is a clear violation of the rules of the workplace and the workplace safety laws and amendments that reduces the risk of a decision by the Disciplinary Committee on the grounds that a majority of the plaintiff’s justified for the reason of employment contract immediately and without compensation to the decision because the case was dissolved as a bet to be given of the denial of the requested.
The court decided that the termination made by the defendant was invalid and that the claimant’s request for reinstatement to work was accepted, the claimant’s wages and other rights that were born up to a maximum of four months during the absence of employment were paid, and the compensation for not starting work was determined in the amount of gross wages for four months.
The verdict has been appealed by the defendant’s attorney.
According to the contents of the file, it is understood that the employer fulfills the warnings regarding the smoking ban at the workplace in terms of the concrete incident by hanging warning letters and signs all over the workplace, including the toilet, and it is known to everyone that smoking indoors is also a violation of the law. Also the employer, the worker is a member of a labor union in the nature of the internal regulations of the collective agreement in force between Oct in accordance with Article 39, in places where smoking sign no smoking, matches and lighters use here, smoke, fire, or other flammable substances to enter as the reason for dismissal was mentioned. For this reason, as stated in the court’s reasoning, it is erroneous to establish a provision for the plaintiff’s return to work based on such grounds as the fact that the smoking place alone is a toilet, the toilets are covered with tiles. Moreover, as can be understood from the statements of the defendant’s witness, who is an occupational health and safety expert, it should be accepted that smoking poses a danger to the entire workplace and occupational safety when considering the fact that the toilet is located close to the production areas and the substances found around it are flammable.
For all these reasons, with respect to the concrete case, the plaintiff accused the employer of the worker and the employment contract of Paragraph 2 of Article 28 of the labor code 4857 (I) subparagraph located, “the worker’s own desire and jeopardize the security of savsamas job because…” reasons justified reason, based on an acceptance of the dissolution of the court in the direction that the termination is invalid and refund request is accepted by the degradation of the provision be eliminated, 4857 law, 20. in accordance with paragraph 3 of the Article, the decision had to be made as follows.
Conclusion: With the justification described above;
1- The decision of the court, the date and number of which are specified above, shall be overturned and eliminated,
2-DISMISSAL of the case,
3-Since the fee was received in advance, there is no place for it to be taken again,
4-To leave the trial expenses made by the plaintiff on, to pay the defendant with the collection of the trial expenses of TL 153.00 made by the defendant from the plaintiff,
5-According to the tariff in force on the date of the decision, the power of attorney fee of 1.800, 00 TL is taken from the plaintiff and given to the defendant,
6-It was decided unanimously on 10.05.2016 to return the appeal fee received in advance to the defendant upon his request.
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