Reduction of Criminal Conditions in Labor Law
(Y9HD-K.2021/6992)
If the plaintiff chooses to Decriminalize the penal clause agreed in the employment contract between the parties, it should also be determined whether the penal clause should be reduced.
A penal clause is defined in the doctrine as a separate act with a monetary value to be paid if the existing debt is not fulfilled at all or incompletely (…: Penal Clause in Turkish Law, … 1963)
The penal clause is stipulated in Articles 179-182 of the Turkish Code of Obligations numbered 6098. it is regulated among the Decrees and there is no provision related to this issue in the Labor Laws. Although the mentioned provisions of the Turkish Code of Obligations are applied in terms of labor law, our Chamber has produced solutions specific to labor law in some aspects. In accordance with the “Principle of Interpretation for the Benefit of the Employee” in labor law, criminal conditions that only provide for obligations to the employee are considered invalid, and established case law in this direction has been adopted in the doctrine.
Although there is no explicit provision in Law No. 818 regarding penal clauses in terms of service contracts, in parallel with the implementation of our Chamber; 420 of the Turkish Code of Obligations No. 6098, which entered into force on July 1, 2012. in the article, “Only the penal clause imposed against the employee in the service contracts is invalid.” the judgment is in place. In this context, the criminal conditions imposed against the employee in the service contracts should be considered invalid, and the criminal conditions imposed in favor of the employee should be considered valid.
The fact that the penal clause should be regulated about the duo and the employee and the employer also reveals that the penal clause agreed against the employee should not be more than the penal clause agreed against the employer. In other words, it is inconceivable that the penal clause decided against the employee exceeds the employer’s responsibility in terms of its conditions and the amount of the penalty. In the event of an inequality against the employee under a double penal clause, although the penal clause is not completely invalid, the employee’s liability cannot exceed the amount and conditions for which the employer is responsible.
The penal clause agreed upon on the condition that the employee works for a certain period of time in exchange for the training provided to the employee cannot be evaluated unilaterally. The provision of a penal clause in exchange for education is valid within the specified limits, provided that the penal clause is equal to the cost of the education provided to the employee.
In certain and indefinite-term employment contracts, in the presence of the principle of reciprocity, the provisions containing penal clauses are generally valid. However, in order for the penal clause to be valid, the employment contract between the parties must be for a certain period of time. Dec. In terms of this rule, according to the decision of the General Assembly of the Court of Cassation Case Law Unification dated 08.03.2019 and numbered 2017/10, 2019/1, “the penal clause based on unfair termination before the expiration of the term is valid” in the employment contract, which was made for a certain period of time but was accepted as an indefinite term because it did not carry objective conditions, it was stated that the fixed or indefinite duration of the contract no longer has any effect on the validity of the penal clause.
Paragraph 1 of Article 182 of the Turkish Code of Obligations numbered 6098 is as follows: “The parties may freely decide on the amount of the penalty.” and the last paragraph is as follows: “The judge reduces the punishment he considers excessive by himself.”
3 of the Turkish Commercial Code No. 6102. the article stipulated that all transactions and actions related to the commercial enterprise and the issues regulated in the Commercial Code will be considered as “commercial business”. The relationship between the employer and the employee is Dec. 3 of the Turkish Commercial Code. it is not a commercial business defined in the article, but a unique employment contract arising from the Labor Law No. 4857 and subject to the provisions of the Labor Law and within this framework.
In addition to the fact that the employee-employer relationship is related to public order, the principle of “balancing the parties”, which is one of the basic principles of labor law, confirms this acceptance. Therefore, it is very clear that the penal clause stipulated in the contract does not arise from a commercial relationship in the sense stipulated by the provisions of the Turkish Commercial Code. Therefore, Article 22 of the Turkish Commercial Code, which provides that ”a debtor with the title of merchant cannot request the reduction of the criminal condition by claiming that excessive punishment has been decided in the cases written in paragraph 3 of Article 182 of the Turkish Code of Obligations,” cannot be applied to a concrete dispute.
As a matter of fact, the same principles were emphasized in the decision of the General Assembly dated 15.10.1997 and numbered 1997/9-486,822 and it was accepted that the title of merchant does not require the application of the rule in Article 22 of the Turkish Commercial Code in terms of the penal clause in the employment contract. Accordingly, due to the mandatory regulation made in the last paragraph of Article 182 of the Turkish Code of Obligations No. 6098 (article 161/3 of the abolished Code of Obligations No. 818), it should be accepted that the judge is obliged to make an ex officio discount on the criminal condition if he considers it excessive.
In this case, the judge takes into account the economic situation of the parties, the interests of the creditor, the defect of the debtor, the severity of the violation of the debt, the type and duration of the contract when making a decision using his discretion, and if he sees that the amount of the penalty is unfairly high, he intervenes in the contract and reduces the amount of the penalty. (…, a.g.e., s. 1320)
The importance of the issue is increasing even more in terms of penal clause regulations against employees in the practice of labor law. Given the relationship between the condition and the penalty, it is necessary to go to Decrees that will not lead to the economic ruin of the worker. According to the established case law of our department, the penalties that are subject to the condition that the employee works for a certain period of time must be reduced by determining a rate according to the periods worked and required to work under the contract. However, it is not enough to make a discount only according to the duration rate. (see 3.3.2021, 2021/854 E, 2021/5458 K; 26.01.2021, 2019/6662 E, 2021/2385 K )
In the lawsuit; the plaintiff’s working period is 11 months and 22 days, and since the employment contract is 10 years, the period of non-work is 108 months and 8 days. The criminal term has been decided as 60 months. The working period was calculated at the rate of 9/10 of the working period and the penalty condition was calculated at the rate of 60 months and a net amount of 550.006,20 TL was ruled without any discount. According to the mode of admission; Although no discount has been made by the Court of First Instance and the District Court of Justice, it is clear that the amount of criminal conditions is exorbitant, and according to the practice of our Department, it is not enough to make only proportioning when determining the amount of criminal conditions, a discount should be made.
In this respect; if the plaintiff chooses to collect with a declaration that he will receive a criminal condition, 182 of the Turkish Code of Obligations numbered 6098. the last paragraph of the article (161/3 of the Abrogated Obligations Law No. 818. the amount of the penal clause to be determined by making a discount in accordance with article) should be determined by taking into account the periods during which the plaintiff works and must work, and should be decided according to the result to be formed. It is a mistake to decide on a criminal condition only on a proportional basis without taking this issue into account.
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