Law Office
Case Number: 2017/12550
Decision Number: 2019/14617
“Text of Justice”
COURT: LABOR COURT
Following the decision rendered in the case between the parties, the defendant’s attorney requested an appeal review, and it was determined that the appeal requests were filed within the prescribed time limit. After hearing the report prepared by the Investigating Judge for the case file, the file was reviewed, the matter was discussed, and an assessment was made:
JUDGMENT
A) Summary of the Plaintiff’s Claim: The plaintiff’s
attorney stated that the plaintiff worked at the defendant’s workplace between May 2, 2013, and September 2, 2014, was a cooperative person, and had no problems. However, the dismissal was unjust, any conversations at the workplace did not constitute gossip, did not disrupt the working peace at the workplace, the cliques and conversations at the workplace stemmed from human nature, the plaintiff was a union member on 04/14/2014, and the employment contract was terminated for unjust reasons. They claim that the plaintiff is entitled to severance pay and notice pay and that they have requested this; they have filed a claim for the admissibility of the case and have filed a lawsuit.
B) Summary of the Defendant’s Response:
The defendant’s lawyer stated that on August 28, 2014, while working the 4:00 p.m. to midnight shift, the plaintiff slandered and insulted his colleague ZT and general manager TO by saying, “You live like your boss’s close friend; he protects and watches over you,” and argued with the general manager… The disciplinary committee decided to terminate the plaintiff’s employment contract in accordance with Article 25/II-d with its decision dated September 2, 2014, numbered 2014/10. He claimed that he was taken to the hospital around 9:10 p.m. complaining of difficulty breathing, that he was given a person named Zuhal, that he smoked in the company vehicle despite it being illegal, that no findings were detected during the hospital checks, and that smoking was a mistake, requesting that the case be dismissed.
C) Summary of the Local Court’s Decision:
During a meeting with another employee to discuss the employment contract, the dispute ended when the employee made remarks about the other employee having a friendly relationship with another employee. The dispute was resolved on the basis of whether the plaintiff’s behavior gave the employer the right to terminate the contract for just cause, and whether the reasons arising from the employee’s behavior constituted grounds for immediate termination under Article 18 of the Labor Law and Article 25 of the same law.
If the severity of the punishment was insufficient, it could be a valid reason for termination. it was decided that the plaintiff’s conduct, based on just cause for termination, did not significantly disrupt the workflow at the workplace but caused unrest among employees, and that this could be a valid reason for termination, not just termination, and therefore the plaintiff could receive severance pay and notice pay.
D) Objection:
The defendant’s lawyer raised an objection during the decision-making process.
E) Reasoning:
1- Since there were no errors in the evaluation of the documents and evidence in the file, the defendant’s objections, except for those covered in the following paragraph, were deemed inappropriate.
2- Article 18 of Labor Law No. 4857 grants the employer the authority to terminate the employment contract for reasons arising from the employee’s conduct and incompetence. Termination due to the employee’s conduct does not aim to punish or impose sanctions for acts previously committed by the employee in violation of the employment contract; it aims to prevent the risk of continued or repeated violation of contractual obligations.
For the employment contract to be terminated due to the employee’s conduct, the employee’s conduct must be in violation of the employment contract. If the employee’s negligent behavior breaches the contract and negatively affects the employment relationship as a result, termination based on the employee’s conduct will be valid. On the other hand, considering that the employee cannot be held liable for acts that are not based on fault or negligence and are contrary to the contract, valid grounds for termination based on the employee’s conduct cannot be specified.
Reasons arising from the employee’s conduct
and incompetence are reasons that significantly affect work performance in the workplace, in addition to the reasons specified in Article 25 of the same Law, although they are not of the same nature. In cases where the continuation of the employment relationship due to the employee’s conduct or incompetence cannot be expected to be important and reasonable for the employer, the reason for termination must be accepted as valid. Termination based on the employee’s conduct
requires, first and foremost, that the employee has breached the employment contract.
This is the name of the employer. In this context, it is necessary to first determine which contractual obligation has been imposed on the employee and then which specific contractual obligation the employee has breached through which conduct. Undoubtedly, in this context, it must be examined whether the employee’s breach of the employment contract is serious enough to entitle the employer to terminate the contract immediately.
Next, it must be determined whether the employee could have avoided the specific breach of obligation if they had wanted to. It is essential that the employer’s operational interests have been harmed due to the employee’s specific breach of contract.
The scope of the employee’s obligations is defined in individual and collective employment contracts and legal regulations. Breaches of contract caused by the employee’s fault (whether intentional or negligent) are relevant for termination of the contract. It is not necessary for the employee to have intentionally breached their contractual obligations for a valid reason for termination to be stated.
Breach of the duty of care and negligence are sufficient. On the other hand, the employee’s conduct not based on their own fault does not, as a rule, give the employer the right to terminate the contract based on the employee’s conduct. The degree of fault will play a role in assessing the possible negative effects of the termination of the employment contract and weighing the benefits. In determining whether the employee has breached the employment contract, not only the primary obligations but also the ancillary obligations and ancillary duties arising from the law or the rule of good faith must be taken into account.
The duty of loyalty requires the parties to the contract not to cause harm to the other party’s person, property, or other legally protected assets in the performance of obligations arising from the contractual relationship. The duty of loyalty imposes on the parties to the contract an obligation not to harm the other party’s person, property, or other legally protected assets in the performance of obligations arising from the contractual relationship and to refrain from any conduct outside the scope of the contractual relationship, particularly conduct that would undermine mutual trust.
The employer is responsible for proving that the employee has breached their obligations under the employment contract.
The employee’s obligation to perform the work is specified by the instructions given by the employer within the scope of their management rights. The counterpart to the employer’s management rights is the employee’s obligation to comply with the employer’s instructions. Based on their right to give instructions, the employer regulates where, how, and when the work specified in the employment contract is to be performed. Instructions regarding the start and end times of the daily working hours, how breaks are to be taken, the distribution of work at the workplace, or the tools, equipment, and techniques to be used are among such instructions.
The employer’s right to manage includes maintaining order in the workplace and giving instructions regarding the employee’s behavior. On the other hand, the employer’s right to give instructions cannot be questioned regarding the amount of remuneration and the scope of the working hours to be paid, which are fundamental elements of the employment contract. The employer does not have the authority to unilaterally increase the total working hours or reduce them in a way that affects the remuneration.
If the employer gives instructions that cover the essential elements of the employment contract and the balance of performance and consideration in the employment contract is disrupted, the provisions relating to job security may be violated. The employer’s right to give instructions may be restricted or expanded by law, collective bargaining agreements, and individual employment contracts. In other words, the employer’s right to give instructions is limited by the provisions of the law, collective bargaining agreement, and individual employment contract. In this context, since the employer cannot give instructions that violate criminal and public law provisions, the employee is not obliged to comply with such instructions.
Furthermore, the employer cannot give instructions that violate the employee’s personal rights. Similarly, due to the prohibition on abuse of rights stipulated in Article 2 of the Civil Code, the employer cannot give instructions that violate the rule of good faith. In this case, the employer cannot give instructions that would create inequality that would benefit other employees but disadvantage one or more employees, nor can they give instructions that would cause cruelty or suffering to the employee. Therefore, the employer must also comply with the obligation of equal treatment when giving instructions.
The employee is obliged to comply with the instructions given by the employer within the scope of the management right. The employee’s failure to comply with instructions gives the employer the right to terminate the employment contract in a justified or valid manner, depending on the circumstances. Paragraph (h) of the second clause of Article 25 of the Labor Law considers the employee’s insistence on not performing the duties for which they are responsible, despite being reminded, as a valid reason for termination.
On the other hand, as mentioned above, according to the reasoning of the Labor Code, “performing work inadequately, poorly, or insufficiently despite warnings” is a valid reason for termination.
Not every defect in production or service in the employment relationship gives the right to terminate the employment contract. In particular, the average performance that can be expected from an employee is considered a reason for termination.
Production or service errors cannot constitute grounds for termination of an employment contract. However, defective production or service that exceeds the margin of error expected of an employee, i.e., that exceeds the tolerance limit, may be significant grounds for termination of an employment contract. An employee’s low productivity may stem from their own choice or incompetence. It is often difficult to draw the line between not wanting to perform the work and being unable to perform it. The first situation is a temporary termination based on the employee’s behavior within the meaning of Article 18 of the Labor Law, while the second situation is a temporary termination due to the employee’s incompetence.
However, if the employee does not want to fulfill their work obligation, warning the employee and threatening to terminate the employment contract may have a positive effect. Therefore, issuing a warning to the employee is mandatory in both situations. This is because a warning can have a positive effect on an employee who does not want to perform the work at all or wants to perform it inadequately; however, this situation will not have a positive effect on an employee who is physically incapable or incompetent in terms of work.
In this way, it is possible to distinguish between termination due to the employee’s incompetence, as specified in Article 18 of the Labor Law, and termination of the employment contract due to the employee’s conduct, as specified in the Just Cause section, which entitles the employer to terminate the contract. Thus, an employer who terminates the employment contract based on the belief that no warning is necessary due to the existence of a termination reason arising from the employee’s incompetence avoids the risk of facing the consequences of invalid termination (reinstatement) due to failure to give notice, as a result of determining the existence of a termination reason based on the employee’s conduct.
Nowadays, compliance with ancillary obligations has been derived from the principle of good faith. Accordingly, the act of performing work must be carried out in accordance with the principle of good faith.
The cause for termination arising from the employee’s conduct requires the employee’s misconduct.
According to Article 25, paragraph 2, clause (d) of the Labor Law, words or actions by the employee that damage the honor and reputation of the employer or their family, making false accusations and allegations against the employer, or threatening the employer or family members with intimidation, are considered justifiable grounds for dismissal.
In such cases, the employee cannot rely on the freedom of expression guaranteed by Articles 25 and 26 of the Constitution. On the other hand, words spoken by the employee against the employer that are not so severe but are of a nature to disrupt the work order should be considered a valid reason for dismissal. Negative statements directed not only at the employer but also at the employer’s representative, which are not severe enough to warrant justifiable dismissal, should be considered a valid reason for dismissal.
Similarly, if an employee insults persons close to the employer, persons with close ties to the employer, or persons who are partners in another business, makes false statements against them, or makes accusations against them, this constitutes valid grounds for termination of the contract, especially in small businesses where the employer’s personality is important.
Harassment by an employee towards another employee of the employer is considered a valid reason for termination in accordance with Article 25/II, d. Engaging in constant and unnecessary arguments with other employees, unless they are of a mocking nature, and showing serious incompatibility with colleagues are valid reasons for dismissal (Principle dated 26.05.2008 and numbered 2007/37481, Decision numbered 2008/12505).
Using harsh words that would be considered under Article 25 of the Labor Law as a result of provocation by the employee, employer, or representative should also be considered a valid reason for dismissal. Constructive and objective criticism regarding a specific area of expertise or criticism regarding malfunctions or non-compliance with rules in the workplace cannot be cited as a valid reason for dismissal.
In the specific dispute;
According to the information and documents in the file, the plaintiff said to the female employee ZT, “Your boss’s uncle, you are living a friendly life, he is protecting and watching over you,” and in complaints made to the employer on this matter, rumors were spread that the plaintiff, who is married to ZT and T.Ö., had a friendly relationship with them, and this matter was referred to the administration. The plaintiff’s behavior constitutes harassment of another employee at the workplace under Article 25/II-d of Law No. 4857 and gives the employer the right to terminate the contract. While the plaintiff’s claim for severance pay should have been rejected since the employment contract was terminated justifiably, its acceptance was erroneous and necessitated termination.
F) CONCLUSION:
On 01.07.2019, it was unanimously decided, for the reasons stated, to impose an EXCESSIVE fine on the appealed decision and to refund the previously paid appeal fee to the relevant person upon request.