TC
Supreme
law office
E. 2007/31272
K. 2008/10447
T. 28.4.2008
* INVALIDITY OF THE TERMINATION AND THE STATUS OF RETURN TO WORK (The Parties Remain Silent on the Expiration Date and the Contract is for an Indefinite Period Because it has been Renewed – The Termination is Not Based on a Valid Reason, Taking into Account the Plaintiff’s Discomfort and Treatment Situation)
INDEFINITE-TERM EMPLOYMENT CONTRACT (The contract becomes indefinite–term due to the renewal of the contract by remaining silent on the expiration date – According to workplace records, the plaintiff’s job is of a permanent nature)
* CONDITIONS FOR ENTERING INTO A FIXED-TERM EMPLOYMENT CONTRACT (The contract must be subject to a period of time and there must be objective reasons for the establishment of a fixed-term employment contract.)
* THE DURATION OF THE EMPLOYMENT RELATIONSHIP (Even If There is an Objective Reason, If the Termination Date of the Employment Relationship is Unclear or Cannot be Determined on the Date of Establishment of the Employment Contract, It is an Employment Contract of Indefinite Duration)
4857/m.11, 18, 21
818/m.388
5580/m.9
SUMMARY:
The plaintiff has requested that the termination be deemed invalid and that a decision be made on his return to work. In order for a fixed-term employment contract to be mentioned, the contract must depend on the duration and there must be objective reasons for entering into a fixed-term employment contract. Even if there is an objective reason, if the date of conclusion of the contract, the date of termination of the employment relationship is unclear or cannot be determined, an indefinite-term employment contract can be mentioned. It is also not enough to have an employment contract that depends only on its duration. Because the freedom to make a fixed-term employment contract is limited, and the possibility of making such contracts depends on the existence of objective conditions.
The contract was renewed on the expiration date, the parties remained silent, and the plaintiff continued to work until the termination date. According to workplace records, it is understood that the plaintiff’s job is of a continuous nature, there are no objective conditions that require a specific contract to be made for a certain period of time, for example, to do a specific job, to complete a project. In this case, it should be accepted that the service contract is of indefinite duration, and the plaintiff can also benefit from the job security provisions. Given the plaintiff’s discomfort and treatment situation, it is clear that the termination made by the employer is not based on a valid reason.
STATUS : The plaintiff has requested that the termination be deemed invalid and that a decision be made on his return to work.
The local court rejected the request.
Upon appeal by the plaintiff’s attorney at the sentencing stage, the Investigating Judge S. After listening to the minutes edited by Assaklı, the file was examined and the need was discussed and the decision was made:
DECISION: The plaintiff employee stated that the employment contract was terminated by the defendant employer without a justified reason and requested that the termination be invalidated and a decision be made on his return to work.
The court decided to dismiss the case due to the fixed-term nature of the contract.
18 of the Labor Law No. 4857. according to the article, the employee must work with an indefinite-term employment contract in order to benefit from the provisions of job security.
11 of the Labor Law No. 4857. in the article, “Although the business relationship is not for a period of time, the contract is considered to be for an indefinite period. An employment contract concluded between an employer and an employee in writing for a certain period of time or depending on objective conditions, such as the completion of a certain job or the realization of a certain phenomenon, is an employment contract for a certain period of time. Dec. A fixed-term employment contract cannot be made in more than one row (chain) unless there is a justified reason. Otherwise, the employment contract is considered to be of indefinite duration from the beginning. The principles on this subject have been determined by the regulation as follows: “chain employment contracts based on the main reason retain the property of being for a certain period of time”.
Contrary to the regulation in the Code of Obligations, the main rule has been laid down by emphasizing that if the business relationship is not made depending on the duration, the contract will be considered as an indefinite term. The exception is that employment contracts are of indefinite duration, and the main one is of a certain duration. According to the law, a fixed-term employment contract for fixed-term jobs can be made depending on objective conditions, such as the completion of a specific job or the realization of a specific phenomenon. Malicious practices used to exclude an employee from job security should not be protected.
In order for a fixed-term employment contract to be mentioned, the contract must be tied to a period of time and there must be objective reasons for the conclusion of a fixed-term employment contract. Even if there is an objective reason, if the date of establishment of the contract, the date of termination of the employment relationship is unclear or cannot be determined, an indefinite-term employment contract is mentioned. Even if the employment contract is not explicitly bound to a certain period of time by the parties, the contract is implicitly bound to the period if it is understood that there is a certain period of time from the purpose of the work (BK m. 338/1).
The existence of an employment contract that depends only on its duration should not immediately lead to the rejection of the return-to-work case. Because 11. the article limited the freedom to make employment contracts to a certain period of time, and the possibility of making such contracts depended on the existence of objective conditions specified in this provision. Therefore, when they bind the employment contract to a certain period of time, the judge should examine whether objective and material conditions exist, as a result of which indefinite-term employment contracts are the main one, the party claiming the existence of a certain employment contract is obliged to prove it.
11 of the Labor Code. in the article, which situations can be considered objective reasons for accepting the existence of a specific employment contract are listed as examples: continuation of a certain period of time due to the nature of the job, completion of a certain job, or the occurrence of a certain phenomenon. These reasons shown in the law were not counted as a rule, they were shown as examples; in similar cases, the possibility of establishing a specific employment contract was kept open. Because the phrase “depending on objective conditions such as …” is clearly included in the said provision.
There are also regulations in Turkish legal legislation that make it mandatory or possible to conclude certain employment contracts. For example, Article 9 of the Law on Private Educational Institutions No. 5580. its substance. (1) according to subparagraph No., the contract to be made between the administrator, teacher, master teacher and the founder or the founder’s business representative working in institutions and master teachers is made according to the special period specified in the Decrees, for a period of at least one calendar year. Therefore, it is mandatory that the employment contracts to be concluded with private school teachers, principals and other managers of the employment contract should not be for a certain period of time and not less than one year.
11 of the Labor Code. 2 of the article. and 3. in its paragraphs, it is stipulated that chain-linked fixed-term employment contracts, if based on a valid reason, will retain the nature of being a fixed-term employment contract, otherwise they will be considered an indefinite-term employment contract. If there is an objective reason for the conclusion of a fixed-term employment contract, and this reason continues, or a new reason has arisen, fixed-term employment contracts should be considered renewable. In order for chain employment contracts to maintain the nature of being of a certain duration, the objective reasons sought in each of them do not need to be the same.
11 of the Labor Code. article 1. and 2. fixed-term employment contracts concluded between the parties without a valid reason within the meaning of the Decrees will be considered indefinite-term, because the employment contract with the employer has expired at the end of a period, when the employee of the indefinite-term employment contract becomes an employer, he will have to comply with the notification requirements, claiming that the employment contract has been terminated.
He/she will be able to file a lawsuit within the legal time limit by submitting a termination notification without giving a valid reason, such as a monthly perio11 of the Labor Code. article 1. and 2. fixed-term employment contracts concluded between the parties without a valid reason within the meaning of the Decrees will be considered indefinite-term, because the employment contract with the employer has expired at the end of a period, when the employee of the indefinite-term employment contract becomes an employer, he will have to comply with the notification requirements, claiming that the employment contract has been terminated.
He/she will be able to file a lawsuit within the legal time limit by submitting a termination notification without giving a valid reason, such as a monthly period. The beginning of the one-month reduction period is the notification date and means the termination of the employer without complying with the notification period, since it is the notification date if the employer accepts this as a fixed-term employment contract and notifies that the contract has expired after the expiration of the period.
According to the contents of the file, the plaintiff started working as an expert engineer at the workplace with a one-year contract dated 1.8.2005. he renewed the contract with the parties on 1.8.2006According to the contents of the file, the plaintiff started working as an expert engineer at the workplace with a one-year contract dated 1.8.2005. he renewed the contract with the parties on 1.8.2006 upon the termination of the silence, the plaintiff continued to work until the termination date, according to workplace documents, the plaintiff understands that there are objective conditions, such as giving a certain period to a contract that will require the completion of a project, that the work he does is of a certain continuity nature.
In this case, it should be accepted that the servIn this case, it should be accepted that the service contract is of indefinite duration, and the plaintiff can benefit from the job security provisions. Considering the plaintiff’s discomfort and treatment situation, it is clear that the termination made by the employer is not based on a valid reason.
20 of the Labor Law No. 4857 for the reasons stated. article 3. in accordance with the paragraph, it was deemed necessary to remove the provision by distorting it and to make a decision as follows.
CONCLUSION :
For the reasons stated above;
1- Violation and elimination of the decision,
2- Invalidity of the termination made by the employer and the return of the plaintiff to work,
3- Determining the amount of compensation to be paid if the employer does not start working within the legal period despite the claimant applying for a job within the legal period as a 4-month salar2- Invalidity of the termination made by the employer and the return of the
6- Due to the representation of the plaintiff through a proxy, the proxy fee will be charged according to the tariff in force on the date of the decision (500,00 TL), 7- The plaintiff
(52,40) the trial fee made by the defendant was taken from the defendant and given to the plaintiff, the defendant’s trial fee was retained, 8- The appeal fee received in advance was returned to the relevant person at his request, as a final judgment, it was decided unanimously on 28.04.2008.