TC
Supreme
Law Office
E. 2016/29524
K. 2017/12122
T. 6.7.2017
The plaintiff must decide on the invalidity of the termination, the reinstatement to work and the legal consequences of the decision
he must have wanted it.
The local court has decided to accept the case.
Upon the appeal of the defendant by his lawyer during the conviction period, the Examination Judge of the case file
after listening to the edited report, the file was examined, discussed and deemed necessary:
DECISION :
A-) Summary of the Claimant’s Claim:
Surrogate plaintiff,
in the letter of the termination notice of the defendant employer; his client is often ill and
he reports the opinion that various diseases are caused by work stress, and considering the position of the company he works for, considering that the situation he is in affects the normal functioning of the workplace
he claims that there will be no change in the conditions of the media sector he received, which leads to disruption and negativity of the employment relationship and prevents the maintenance of the service relationship, termination of the employment contract by termination, termination of the employment contract by the employer for no valid reason, the fact that his client almost never took sick leave due to illness in the first three years he started working, and took sick leave not exceeding one or two days a year, but was under stress in the last year of his work, due to the diseases caused by these diseases,
he should receive more frequent reports, the resulting reports should not exceed a total of 10-12 days in a year, in addition, the client continues to work from home even on days when he continues to work from home, works almost 7 days a week, does not even use the annual leave granted to him by the plaintiff, his client is sick and takes leave, his client is in constant contact with teammates while working at the employer, instructs and informs his friends from home even on days when he is notified, If the plaintiff’s employee informs that he has terminated the employment contract without a valid reason, the invalidity of the termination and the fact that the plaintiff has requested a decision on his extradition should be taken into account.
B-) Summary of the Respondent’s Reply:
The defendant’s proxy employer, the plaintiff owns Haber Türk TV, and the plaintiff owns Haber Türk
He worked as an Editor at the Department of Culture and Arts of TV, the plaintiff’s defense was requested, and
before the termination process; he received the report 20 times and used the report for a total of 40 days, also the plaintiff
in addition to the reporting days Oct.,
many times, for permissible reasons, citing the excuse that he did not come to work full-time or half-day, the plaintiff’s employment contract
within the last 6 months, without termination, the manager will be late due to migraines, due to traffic
that he could not make it to the meeting, could not stay on the road, could not go to the doctor’s examination by sending SMS,
that he reports to the news meeting that takes place every day between 09.25-10.15 with the unit managers Dec,
constantly causing inconvenience, inspection, traffic jams, etc. the circumstances suggest that he did not participate, the plaintiff’s
in this way, he often receives reports and puts forward excuses that lead to negativity in the workplace, while the last
as a result of the fact that he did not introduce anyone else to the meeting instead of himself, he was late for the meeting and related to the plaintiff’s business
that you have been experiencing difficulties, that work stress has reached the point of getting sick, that you have been working for a long time that its counter approach is evaluated, that it causes disruptions and negativities in the workplace, that the service
recognizing that it is an obstacle to the continuation of the relationship, all legal rights of the employment contract are paid,
he has argued that he has been terminated and that the case should be dismissed.
C-) Summary of the Local Court Decision:
At the end of the trial conducted by the court, the defendant of the plaintiff who is not in the position of the employer’s attorney,
he started working at the workplace on 09/05/2011 with an indefinite-term employment contract, the last
while working as an Editor according to the Labor Law No. 4857 of the employment contract signed by the respondent employer on 31/08/2015
and 18. terminated according to the article, the plaintiff who filed this lawsuit within the 1-month period of deprivation of rights from the date of termination, whose seniority is more than 6 months,
it is understood that there are also more than 30 employees in the workplace where the employee works, the plaintiff is covered by job security, and the legal regulation has been accepted and found useful.
As a result of all these determinations, from the examination of all the records belonging to the plaintiff employee submitted to the file by the found defendant
the burden of proof belongs to him; according to the justification contained in the notification,
termination , the plaintiff’s job description, productivity, the employer’s corporate principles, whether the necessary workplace rules were followed, whether they were determined objectively and concretely in advance during the examination together with witness statements, the plaintiff’s frequent notification and excuses, which led to negativity at work, finally, the failure to appoint a replacement for someone about to enter a meeting, and the plaintiff’s statements about problems with his job,
work stress manifested itself, reached the point of getting sick, when his approach to work for a long time was evaluated, it is claimed that it leads to disruptions and disadvantages at work and prevents the maintenance of the service relationship, although the reason for termination was made, the plaintiff was notified on the dates indicated that there was no dispute between the parties, how Decently the behavior attributed to the plaintiff employee was, the defendant acted contrary to the contract and as a result, the employment relationship was negatively affected, it cannot be clearly and concretely revealed by the employer,
no matter in what material event, that it was contrary to the contract, since this is not due to the defect and negligence of the employee, it was decided to accept the case on the grounds that the employee cannot be held responsible for his behavior, the plaintiff’s duty for the employee’s behavior, the working conditions under which the valid reason for termination arose may not be in question, the termination of the contract directly attributed to the plaintiff without warning or warning due to the actions attributed to the plaintiff would be contrary to the principle that termination is the last resort.
D-) Appeal: The decision has been appealed by the defendant’s attorney.
E-) Justification:
20 /II of the Labor Law No. 4857.c.article 1.who is obliged to clearly prove that the termination is based on valid reasons
the defendant is charged to the employer.
When fulfilling the proof obligation, the employer will first prove that he complies with the official conditions of the termination. Accordingly, the employee who has made the termination in writing, in some cases by documenting the reasons for the termination based on the content of the written termination,
if he wants to defend, he must have demonstrated it concretely and clearly. After it is understood that the employer has fulfilled the official conditions in terms of content, the stage of proving that the reasons for termination are valid (or justified) will be started. 18 of the Labor Law No. 4857.its substance.
The employer is responsible for the employee’s behavior and competence and has given him the authority to terminate the employment contract for reasons that arise. The purpose of the termination arising from the employee’s behavior is to violate the employee’s behavior contrary to the employment contract, which he has previously committed not to punish or impose sanctions; the fact that he continues to violate his contractual obligations is that he eliminates the possibility of a repeat.
For this reason, termination of the employment contract due to the employee’s behavior requires the presence of an employee who violates the employment contract in a manner contrary to the contract. If the employee is defective with his behavior, acts contrary to the contract and, as a result, the employment relationship is negatively affected, there will be a valid termination arising from the employee’s behavior. On the other hand, the employee cannot be held liable to the employee for non-contractual behavior that is not based on defect and negligence, nor can there be a valid reason for termination arising from the employee’s behavior.
25 Of the same Law. in the article, the reasons arising from the employee’s behavior and incompetence are determined. In The Article
in addition to the stated reasons, although not of this nature, in the workplace
it is also important to see the causes that affect the degree of negativity. For reasons arising from the employee’s behavior or incompetence
if the continuation of the employment relationship is important and reasonable from the point of view of the employer
in unexpected cases, it will be necessary to accept that the termination is based on valid reasons.
The employer, who has the burden of proof himself, must prove that the plaintiff’s behavior or incompetence is based on a valid and justified reason
it must also prove that it leads to negativity in the workplace and that the work relationship has become unbearable.
On the other hand, in which cases is the termination valid due to the incompetence of the employee and according to the Labor Law to the employee
he is considered one of the exemplary talents that he will be entitled to, and one of them is that he gets sick frequently and receives reports.
If frequent reports are received, the employer will not be able to benefit from the employee’s work performance, even if it is intermittent.
Frequently that the absence of an employee who is frequently ill and receives a report will lead to negativity in the workplace
it is a clear phenomenon. In the justification of the Labor Law, the reason for frequent illness is due to competence
, for example, it is recognized that it leads to negativity in the workplace.
18/3 of the Employer Labor Law No. 4857. Article 25/I of the same law F. in accordance with article b of article
in addition to the preliminary notification, the employee cannot terminate the employment contract within the six-week waiting period. Oct. However, the employee
frequent, intermittent reporting is not within this scope.
In case of frequent notification,
even if the notification period remains within the waiting period, receiving the notification often leads to negativity in the workplace
if it is opened, the employee’s employment contract may be terminated with notice or temporarily. In this case, the termination is valid and,
it is based on the reason.
According to the contents of the file, the plaintiff had 9 in 2015, 5 in 2014, 3 in 2013 and in 2012
there are a total of 2 cases, and in 2015 he received a 39-day report, which he often repeats, although other years are not taken into account
in fact, it is understood that this situation has also been accepted by the court.
The plaintiff often
As there are minutes in which he was late or did not attend meetings, indicated that he was going to the doctor
minutes were also kept that he did not participate and did not provide information. The plaintiff is the last
in his defense, he said that he had problems with his supervisor, that his psychology was impaired, because of his discomfort
he reported that he received it.
According to these concrete material and legal facts, the plaintiff attended the meetings late, regardless of whether he received a report or did not attend
, that he has problems with his supervisors at work, that he often takes reports and attends meetings
it is understood. Negativity in the workplace
on how to determine the termination behavior and effectiveness from the point of view of a worker who creates and makes the work relationship unbearable for a long time
the principle of being a last resort cannot be mentioned. For these reasons, the case is based on the valid reason
acceptance of the termination with written justification instead of rejection is erroneous.
20/3 of the Labor Law No. 4857 by our department. in accordance with the article, the following decision has been made.
CONCLUSION :
With the reason explained above;
1. TO THE VIOLATION AND ELIMINATION of the court decision,
2. TO THE DISMISSAL OF THE CASE,
3. Since the fee was received in advance, there is no place to get it again,
4. To keep the plaintiff more than the trial expenses,
5. By determining the amount of the fee amounting to TL 1.980,00 determined according to the tariff in force on the date of the decision by the plaintiff’s attorney
to be given to the defendant,
6. Vote for the refund of the amount of the claim fee received in advance to the defendant by fulfilling the requirement of the request in kind on 06.07.2017
it was decided by the union.