Summary:
The plaintiff’s acceptance of this provision in the employment contract does not grant the employer an absolute right to change the plaintiff’s workplace; therefore, this authority must be exercised objectively.
In our case, the employer must prove that the offer of a wage change, which was not accepted by the plaintiff, is based on a valid reason in accordance with the principles explained above. The file shows that at the workplace of the employer located in Çorlu, both workers receiving a fixed wage and workers receiving a fixed wage + piecework wage, the employer’s offer of a fixed wage + piecework wage to the plaintiff was not accepted in writing by the plaintiff, Upon the plaintiff’s request, the fixed wage was assigned to the workplace in Bayrampaşa, but since the plaintiff did not leave the scope of the workplace, it is necessary to continuously refer to the file. In the employment contract signed between the parties, the plaintiff employer agreed to work at different workplaces in addition to different employers at the same workplace.
Regarding the purpose of this change, in order for the plaintiff to be able to defend himself against the new fixed wage applied at the workplace as a result of the employer’s continued arbitrary assignments, the application fee and the workplace application fee were waived through amicable settlement. It must be accepted that the employer did not exercise its management right in Bayrampaşa, and therefore this wage change was based on a valid reason, as it did not constitute a substantial change in the plaintiff’s working conditions.
Accordingly, it is understood that the defendant’s relocation was based on a valid reason and that the plaintiff had the right to terminate the employment contract for just cause pursuant to Article 25/2-g of Law No. 4857, provided that the plaintiff’s absence from the new workplace and the fact that this absence was recorded in the minutes were established. For the reasons explained above, the plaintiff’s claims for seniority and notice compensation must be rejected, and the acceptance of the claim as a result of incorrect assessment must be deemed erroneous and require correction.
TC
Supreme
Law Office
Decision No: 2012/29764
Decision No: 2013/28345
Date: 6.12.2013
CASE: The plaintiff requested a determination of whether he was entitled to severance pay, notice pay, overtime pay, wages, and annual leave pay.
The court partially accepted the request.
Although the defendant appealed through their lawyer during the criminal proceedings, the case file was reviewed, discussed, and a decision was made if deemed necessary after hearing the report prepared by the Review Judge for the case file:The plaintiff’s attorney seeks to reduce the employer’s wages to the minimum wage for refusing to employ workers at the factory in Istanbul. The employer threatens to terminate the employment contract without receiving the full amount owed by the defendant, who declared on November 3, 2011, that they wanted training, and to claim severance pay and more.
>The defendant’s attorney states that the department where the plaintiff worked had a fixed wage system in some units and a piece-rate system based on the product produced in other units, that under this system, he was entitled to the minimum wage up to a certain quota, and that the quota was then paid on a piece-rate basis. The defendant’s attorney stated that if the plaintiff had declared in writing on November 1, 2011, that production was entirely based on a piece-rate system with bonuses for engraved cards, the decision to continue processing would not have been made.
that this situation was different in the same place and that the workload among employees affected the peace of the application fee, that the plaintiff could not work in the engraved section of the card, and therefore the section he applied for was transferred to the fixed-wage Bayrampaşa smart card production section, but the plaintiff did not accept this and subsequently did not start work at his new place of work and was absent without leave, arguing that the case should be dismissed.
>The court stated that although the plaintiff’s employment contract stipulated in advance that the employer could assign the plaintiff to work in the same or another job at other workplaces within the country that were existing or in operation,
While it cannot be said that the employer exercised its rights arising from the employment contract and management authority objectively and in good faith, it was determined that the plaintiff could not be expected to accept being transferred from the workplace in Çorlu to the workplace in Bayrampaşa, even with the same personal rights, as this would create a fundamental change in working conditions, and that severance pay and other labor claims would be accepted.
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The dispute between the parties concerns whether there was a fundamental change in the plaintiff’s working conditions and whether the defendant objectively exercised its management right in this regard.
One of the most debated areas of labor law is the definition of working conditions, the application of these conditions, changes made to them, and finally, resolving the fine line between changes not subject to the employee’s acceptance and the employer’s management right.
All rights and obligations arising from the employment relationship and subject to the performance of the work should be considered “working conditions.” Article 22 of Labor Law No. 4857 states, “The employer may make a substantial change in the working conditions arising from the employment contract or personnel regulations and similar sources related to the employment contract or workplace practice only by notifying the employee in writing. Changes not made in accordance with this form and not accepted in writing by the employee within six working days are not binding on the employee.
If the employee does not accept the proposed change within this period, the employer may terminate the employment contract by explaining in writing that the change is based on a valid reason or that there is another valid reason for termination, and by complying with the notice period. In this case, the employee may file a lawsuit in accordance with the provisions of Articles 17 to 21. he regulation establishes a normative basis for changes in working conditions.
>The most important working conditions are the employee’s obligation to perform work and the employer’s obligation to pay wages in return, which are the essential elements of the employment contract.
The working conditions include, among others, the place and time of work, working hours at the workplace, annual leave periods, additional payments to wages, breaks, social rights such as marriage, maternity, education allowance, meals, disability, and death benefits, as stipulated in the Decree Law No. 2010/12 dated October 2010. The employee’s inclusion in the individual pension system, provided that private health insurance is taken out or premiums are paid by the employer, is also included in the concept of working conditions.
If the employment contract contains provisions allowing for changes to working conditions when necessary, this is referred to as the employer’s extended management right. In this case, the employer gains the right to make continuous changes to the employee’s working conditions, provided that they do not abuse their management right and comply with the limits set out in the contract.
For example, provisions in the contract stating that the employee may be assigned to other workplaces belonging to the employer when necessary reserve the employer’s right to make changes in this regard. This right must be exercised objectively. Including a provision in the contract that would terminate the employee’s employment contract constitutes an abuse of the employer’s management right.
Changes that fall within the scope of the employer’s management right or are based on a valid reason cannot be considered substantial changes in working conditions.
The proposed change does not bind the employee unless it is accepted in writing by the employee within six working days. After the expiration of this period, the employee’s acceptance of the proposed change does not bind the employee.
The proposed change is not binding on the employee unless accepted in writing by the employee within six working days. After the expiration of this period, the employee’s acceptance of the proposed change constitutes a new order given by the employee to the employer.
Th employer may terminate the employment contract only after six working days have passed. The employer’s termination of the employment contract upon the employee’s declaration of acceptance after six working days implies an implied rejection of the new offer made to the employee.
>The review of the valid reason for termination of the change must be conducted in two stages. First, there must be a valid reason within the content of the employment contract that necessitates the change. Therefore, the valid reasons required for termination under Article 18 of Law No. 4857 must be present in the termination of the change. In other words, for the change to be terminated, there must be a valid reason arising from the employee’s competence, conduct, or work requirements. Te specified valid reasons must be examined.
The verification of the stated valid reasons must be carried out here in the same manner. The weight and scope of the verification do not differ. If, during the verification, the existence of a valid reason within the meaning of the aforementioned Article 18 is not established, the termination of the change must be deemed invalid before proceeding to the second stage.
If a valid reason requiring the amendment of the employment contract is found, the second stage involves examining whether the proposed actual amendment to the contract complies with the law, the collective bargaining agreement, and the principle of proportionality, and whether it is reasonable to expect the employee to accept this offer, i.e., whether they are required to accept the proposed amendment. In other words, the proposed change is reviewed in the second stage. In this context, a proportionality review should primarily be conducted based on the specific circumstances of the case.
Termination due to the change can only be argued if it is necessary as an appropriate and less severe solution for changing the working conditions and is proportionate to the intended purpose (ultima ratio). There should be no other organizational, technical, or economic measure that would achieve the same purpose without requiring a change in working conditions or proposing less severe working conditions. The employer must also, if possible, make a more reasonable offer to amend the contract. If the proposed amendment violates the principle of equal treatment under labor law, the employee is not obliged to accept it, and the termination of the amendment is invalid.
According to these statements, in the specific case, the defendant employer switched entirely to a minimum wage + part-time wage system at Kazımali Kartal’s workplace in Çorlu, different wage systems disrupted workplace harmony, and therefore the plaintiff was asked in writing on November 1, 2011 whether he accepted this wage change decision. The plaintiff stated that they did not accept it. The defendant also claimed that the plaintiff was assigned to a workplace in Bayrampaşa, Istanbul, with a fixed wage system, but that the plaintiff failed to start work at this workplace between November 14-16, 2011, and was therefore absent from work. Consequently, the employment contract was terminated without compensation for just cause.
The plaintiff was dismissed between November 14-16, 2011. According to the employment contract signed between the parties, the plaintiff agreed to work at different workplaces of the employer. The plaintiff’s acceptance of this provision in the employment contract does not give the employer an absolute right to change the plaintiff’s workplace; therefore, this authority must be exercised objectively. In our case, the employer must prove that the offer of a wage change, which was not accepted by the plaintiff, was based on a valid reason in accordance with the principles explained above. The file shows that at the workplace of the employer located in Çorlu, the employer’s offer of a fixed wage + piecework wage to the plaintiff, which was not accepted in writing by the plaintiff, was made to workers who received both a fixed wage and a fixed wage + piecework wage.
Upon the plaintiff’s request, the fixed fee is to be paid at the workplace assigned in Bayrampaşa; however, since the plaintiff’s workplace remains within the scope of the case, it is necessary to continuously refer to the case file. In the employment contract signed between the parties, the plaintiff-employer agreed to work at different workplaces in addition to different employers at the same workplace. Regarding the purpose of this change, in order for the plaintiff to be able to defend himself against the new fixed fee applied at the workplace as a result of the employer’s continued arbitrary assignments, the application fee and the workplace application fee were waived through amicable settlement.
It must be accepted that the employer did not exercise its management right in Bayrampaşa and that this wage change was based on a valid reason, as it did not constitute a substantial change in the plaintiff’s working conditions. In this regard, it is understood that the relocation made by the defendant is based on a valid reason and that the plaintiff has the right to terminate the employment contract for just cause in accordance with Article 25/2-g of Law No. 4857 if he does not go to the new workplace and his absence is confirmed by the minutes taken. For the reasons explained above, the plaintiff’s claims for seniority and notice compensation must be rejected. It has been revealed that the acceptance was erroneous as a result of an incorrect assessment and should be overturned.
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The court calculated the amount without considering the amount that could be charged to the buyer in the expert report, based on the fact that the November 2011 payroll was unsigned and payment could not be proven. The bank statement in the file shows that the amount specified in the November 2011 payroll was deposited into the plaintiff’s account. Consequently, the decision rendered without considering this payroll is erroneous, and the court’s decision on this matter must be reversed. CONCLUSION
: It was unanimously decided on 06.12.2013 to REVERSE the appealed decision for the reasons stated above and to refund the appeal fee previously collected to the relevant party upon request.