Turkish Supreme Court Plenary Session Decision No: 2011/9-508
Decision No: 2011/545
Decision Date: 09/21/2011
IMMEDIATE COLLECTION OF A PENALTY – VIOLATION OF THE NON-COMPETITION CLAUSE
A CLAIM OF CONDUCT IS A STATEMENT THAT THE BASIS OF THE NON-COMPETITION CLAUSE IS THE EMPLOYEE’S
DUTY OF LOYALTY ARISING FROM THE EMPLOYMENT CONTRACT.
ESTABLISHMENT OF A LABOR COURT FOR DISPUTES ARISING FROM THE EMPLOYMENT CONTRACT
SUMMARY: The basis of the non-competition clause in question is the loyalty arising from the employee’s obligation
under the service contract; the court dealing with disputes arising from the service contract
is working on this matter.
(1475 PK m. 14) (4857 p. K. m. 4, 120) (818 Pp. K. m. 159, 161, 348, 349, 350, 351, 352) (6762 P.
K. Art. 4, 5) (5521 PK Art. 1) (YIBK 29.06.1960 T. 1960/13 E. 1960/15 K.) (YHGK 05.02.2003 T.
2003/9-82 E. 2003/65 K.) (YHGK 22.09.2008 T. 2008/9-517 E. 2008/566 K.)
Case: At the end of the case between the parties; Bakırköy 9th Labor Court. Upon the plaintiff’s attorney’s request for questioning
the Court’s decision dated 09.01.2008 and numbered 2007/76 – 2008/1 regarding the dismissal of the case
was overturned by the Supreme Court of Appeals Civil Chamber’s decision dated 25.09.2010
and numbered 2008/14902 – 2010/1271;
(…1- Based on the evidence gathered from the articles in the file and the legal grounds on which the decision is based,
the plaintiff’s objections outside the scope of the following paragraph are unfounded.
2- The plaintiff company is a company operating in the same sector as the defendant employee,
who left his job without notice while working for another company, and has claimed severance pay and punitive damages due to irregularities at the workplace.
After the defendant employee stated that she was married and therefore not entitled to severance pay, the court
stated that the condition imposed on her could not be fulfilled due to her situation.
The case was dismissed by the court, and the plaintiff appealed the decision.
If the woman voluntarily terminates her employment contract within one year of her marriage date,
she is entitled to severance pay (Article 14 of Law No. 4857, which remains in force with Article 120 of Law No. 1475),
and therefore, the plaintiff cannot be awarded notice pay. The decision is correct. This matter.
The penalty clause related to the non-competition clause is a separate legal concept. In a criminal case related to the non-competition clause,
even if there is no damage, it is possible to claim the relevant compensation in case of breach of contract.
The normative basis is BK m.159/II. Furthermore, BK m.351/II states that employees can be released from their contracts by paying the penalty clause.
However, the reduction rules in BK m.161/III have been taken into account here. Reciprocity is not required. However, the reduction rules in BK m.161/III
have been taken into account here. Reciprocity is not required.
In the specific example, the defendant employee started working for a company engaged in the same business as the plaintiff company. In sales,
it is inevitable that a basis for representation will be established. The employment contract stipulates that the employee cannot work for another company for a period of six months
from the date of termination. Non-compliance is non-negotiable.
The court’s decision is subject to criminal law conditions. 161. The authority to evaluate and decide based on the outcome
is granted.
It is incorrect to decide in writing…)
At the end of the retrial, the grounds are overturned and the file is returned to its original place,
and the court objects to the previous decision.
After it was understood that the decision was appealed by the General Assembly of the Court of Appeals within the review period and
the documents in the file were read, the necessary matters were discussed:
Decision: The case is contrary to the non-competition clause regulated in Articles 348 and following of the Code of Obligations based on the alleged behavior
; it concerns the collection of the penalty clause agreed upon in the contract.
The decision of the Local Court to dismiss the case, given by the Special Chamber upon the plaintiff’s attorney’s appeal
is based on the ruling that the text adopted in the same manner as mentioned above was violated in terms of the penalty clause; this was objected to in the court’s previous decision.
The plaintiff’s attorney objected to the decision.
A dispute brought before the General Assembly of the Court of Appeals through an objection concerns whether a decision should be made regarding the collection of penalty compensation related to the non-competition clause
. At the meeting of the General Assembly of the Court of Appeals, before proceeding to the merits of the case, the legal situations arising from Article 4 of the Code of Obligations, which is in the nature of Article 348 and following, were discussed and debated as a priority issue, in accordance with the relevant article, whether the case belongs to the commercial court according to the nature of the absolute commercial case specified in the said article. Regarding the assessment of this primary issue, Article 10 of the Turkish Code of Obligations No. 818, which follows Article 348, contains provisions relating to competition. Article 5 of the same Code states that
It has been stated that the examination of commercial cases is the responsibility of commercial courts.
On the other hand, according to Article 1 of the Labor Court Law No. 5521, in accordance with the Labor Law;
it has been stated that all civil cases arising from rights and claims between employees and employers based on the employment contract or the Labor Law shall be examined in labor courts.
According to the provisions of the aforementioned Law, first of all, in accordance with Article 348 and subsequent articles of the Code of Obligations,
the court responsible for examining cases arising from this law must be determined.
The first law related to work and working life in Turkish law was enacted in 1924,
regulated by Law No. 818, and entered into force in 1926. This
law introduced detailed regulations.
Due to changes in working life and the specific needs of workers, the legislature has increasingly intervened in this area, as required by the social state principle of the Constitution. In this context,
there is the Labor Law No. 931 of 1967,
Law No. 1475, which was repealed by the Constitutional Court in 1971, and
finally, the Labor Law No. 4857, which came into force in 2003.
None of these special laws have repealed the provisions of the law on obligations related to work and working life;
on the contrary, it has been explicitly emphasized that they shall apply to disputes and service contracts outside the scope of the Labor Code,
provided that they do not conflict with the provisions of the Labor Code.
The duty of loyalty arising from the establishment of the employment contract is the employee’s obligation to protect and safeguard the employer’s interests.
The non-competition obligation, which is one of the consequences of the employment contract, expresses the employee’s loyalty to the employer and constitutes the negative aspect of the obligation.
It should be noted immediately that during the term of the employment contract, the employee has a duty of loyalty not to compete with the employer;
this is an obligation included in the contract. The parties agree to include a provision in the employment contract stating that the employee will not compete after the termination of the employment relationship, or to enter into a separate agreement (non-competition agreement) on this matter. The employment contract ends with the termination of the employee’s obligation not to compete with the employer, but this obligation is contractually determined.
If agreed upon, it is a matter of debate (Sarper, Surek: Labor Law, Beta Publications, 2005, p. 277).
If agreed upon, it is a matter of debate (Sarper, Surek: Labor Law, Beta Publications, 2005,
p. 277).
Since the employee is in a weaker position than the other party (the business owner) in the service contract, the business owner,
in order to avoid exploiting the employee by providing unfair benefits through the service contract,
felt the need to specifically regulate the non-compete provisions.
The provisions of Regulations 348-352 of the Code of Obligations are only implicitly included in the service contract and
are applicable to concluded non-competition agreements (Cevdet, Yavuz: Lectures on the Law of Obligations, Special Provisions,
Beta Publications, 2006, p. 276).
The restrictions introduced in this article to protect the employee cannot be applied to other contracts in this case
(Hifzi Veldet Velideoğlu: Commentary on the Turkish Code of Obligations, Supreme Court Publications 1987,
Article 561).
It is not possible to assume that every service contract necessarily concerns a commercial enterprise.
Therefore, the non-competition clause in a service contract made by a person at the artisan level
is meaningless in terms of the lawsuit arising from the violation being considered an absolute commercial lawsuit according to this provision.
Such contractual disputes are not inherently related to commercial life and their resolution is a separate area of expertise
(Sabih, Arkan: Commercial Enterprise Law, 9th Edition, Banking and Commercial Law Research
Institute 2005, pp. 94-95).
The non-competition clause regulated in Article 348 of the Code of Obligations
creates a fundamental obligation even though it is not a contract; it creates a financial obligation based on the employment contract. The basis for regulating the non-competition clause arising from commercial relations
is commercial relations.
Special substantive law rules aimed at protecting employees, when the state needs to regulate employment relationships,
can also be used as a legal dispute in cases where the judiciary is waived.
In order for this law to serve its purpose, which is to provide an easy, fast, and labor law-specific solution,
the expert who rules according to economic procedural rules must be assigned to a special judge.
The expert who rules according to economic procedural rules must be assigned to a special judge. Here,
as in most countries, specialized labor cases in Turkey are heard in special courts;
labor courts, and according to a procedure different from general judicial procedures, meaning that a labor case
expresses the existence and necessity of the judiciary (Hamdi, Mollamahmutoglu: Labor Law, Turhan Publications
2004, p. 103).
According to the decisions of the Supreme Court’s Case Law Harmonization Board dated 29.06.1960, numbered 1960/13 and 1960/15; Courts have specialized knowledge regarding cases arising from commercial relations and established for the purpose of being heard in courts;
legal disputes arising from any claim based on an employment contract made with an employer or based on labor law, involving persons considered employees (as specified in Article 2, except for those working in the jobs specified in paragraphs C, D, and E of the article), are resolved in these courts. In this context, pursuant to the Labor Courts Law No. 5521, which was enacted and entered into force in 1950, for a dispute to be heard in labor courts, a commercial relationship must exist between the persons considered employees and the employer.
Any legal dispute arising from the contract or any claim based on labor law
must fall within the jurisdiction of the court (Supreme Court General Assembly decision dated 05.02.2003 and numbered 2003/82-65).
In this context, the basis of the non-competition clause at issue in the case is the employee’s duty of loyalty under the service contract,
and the court responsible for disputes arising from the service contract
is the labor court.
On the other hand, labor disputes are legal disputes of a special nature. Article 1 of Law No. 5521
Article 1 of Law No. 5521, labor disputes falling within the jurisdiction of labor courts are considered to be legal disputes over rights arising from an employment contract or the Labor Code between employees and employers or their representatives, in accordance with the Labor Code.
Therefore, the duty of labor courts is to resolve legal disputes falling within the scope of labor disputes involving the parties and subjects specified by law.
In other words, there are disputes of a specific nature, and when the rules of jurisdiction are related to public order, their content is arbitrary;
therefore, as civil courts, labor courts
cannot hear administrative and criminal disputes, even if they arise from a contract or the Labor Code;
nor can they hear disputes between workers who fall outside the scope of the Labor Code and the employers who employ them, even if they arise from an employment contract. This is the final type of dispute involving employees and employers as parties;
even if the source is an employment contract, these are cases that cannot be classified and therefore cannot be considered commercial cases; generally, they fall within the scope of legal disputes and civil cases (Hamdi, Mollamahmutoglu: Labor Law, Turhan Publications 2004, pp. 104-105). Since the Labor Courts Law No. 5521 was enacted while the Labor Law No. 3008 was in force, the provision in Article 1 is now defined according to the Labor Law No. 4857, and the provisions of Article 4 should be understood as excluding workers.
The expression in the Labor Law No. 5521 should be interpreted as including workers within the scope. In this case, general courts, not special courts, have jurisdiction over lawsuits filed by persons specified in Article 4, titled Exceptions, of the Labor Law No. 4857 and those working in jobs specified in the job description.
In fact,
the above explanations and principles regarding the court appointed by the law dated 22.09.2008, General Assembly Day and E:2008/9-517, K: 566, have also been adopted in the same manner.
Consequently, based on the Labor Law, Article 348 and the subsequent provisions of the Debt Law No. 818,
in the context of a criminal case filed by a person considered an employee due to a breach of a non-competition agreement,
it was accepted that cases related to collection should be heard in labor courts, and after the preliminary issue was resolved by a majority vote,
the examination of the merits of the case began.
In examining the merits of the case;
According to the mutual claims and defenses of the parties, the minutes and evidence in the file,
the decision to overturn the ruling based on the stated necessary grounds was accepted by the General Assembly of the Special Anti-Corruption Board,
and while compliance with the decision is required, appealing the previous decision is contrary to procedure and law. Therefore,
the decision should not be appealed, and the decision should be overturned. Result: With the acceptance of the plaintiff’s attorney’s objections, the decision to object to the decision to overturn the decision of the Special Anti-Corruption Board for the reasons stated above and the decision to overturn the decision as required by Article 429 of the Code of Civil Procedure was taken unanimously on 21.09.2011.