TC SUPREME
9.Law Office
Originally: 2016/36192
The Verdict: 2018/998
Decision Date: 23.01.2018
RETURN TO WORK LAWSUIT – THE PLAINTIFF HAS BEEN WORKING FOR MORE THAN FIVE YEARS – DISMISSAL BY THE EMPLOYER IS NOT BASED ON A VALID REASON – ACCORDING TO THE EMPLOYEE’S SENIORITY AND THE REASON FOR DISMISSAL, COMPENSATION FOR NOT STARTING WORK SHOULD BE DETERMINED AT THE RATE OF THE PLAINTIFF’S FIVE-MONTH SALARY
SUMMARY: Since it is understood that the plaintiff worked for a total of more than 5 years, the employment contract was terminated due to lack of performance, and since the termination made by the employer was not based on a valid reason, it is in place to decide on the invalidity of the termination and the return of the plaintiff to work. However, according to the seniority of the plaintiff employee and the reason for termination, it was not found correct for the court to determine the compensation for not coming to work in the amount of the plaintiff’s 4-month salary. The determination of this compensation at the rate of the plaintiff’s 5 monthly fee will be in accordance with the content of the file.
(4857 PK m. 21) (2821 p. K. m. 31) (9. HD. ON 08.04.2008 2007/27773 2008/7819 K.)
Lawsuit: The plaintiff has requested a decision on the invalidity of the termination, reinstatement to work and its legal consequences.
The local court has decided to accept the case.
Although the parties appealed by their lawyers during the sentencing phase, the file was examined, discussed and deemed necessary upon hearing the report issued by the Examining Magistrate on the case file:
SUPREME COURT DECISION
A) Summary of the Claimant’s Request:
In summary, the plaintiff’s attorney requested that the plaintiff work as an employee in the defendant company, that the employment contract was terminated as invalid and unfair, and that the plaintiff’s petition for compensation for idle work in the amount of 4 salaries and failure to start work in the amount of 8 gross salaries be decided.
B) Summary of the Respondent’s Reply:
In summary, the defendant’s attorney, in his reply petition, requested the dismissal of the case by asserting that the termination of the plaintiff’s employment contract was based on a valid and justified reason.
C) Summary of the Local Court Decision:
In the evaluation of the evidence collected by the court and the full scope of the file; since it is understood that the defendant, where the plaintiff has been working for more than six months with an indefinite-term employment contract, has more than thirty employees in the defendant’s eyes, in the case filed within a thirty-day period according to the termination date of the employment contract, the employer’s representative independently oversees the plaintiff’s entire business, the termination of the employee and the termination of the employment contract are carried out by the plaintiff, labor law,
dismissal procedures and principles, the principle of equal treatment between employees and termination as a last resort are not in accordance with the principle of equal treatment between employees and termination as a last resort. The employer’s representative oversees the entire business of the plaintiff independently of the employer, the termination of the employee and the termination of the employment contract are carried out by the plaintiff. Dec., in accordance with the claimant’s request, it was decided to accept the subsidized lawsuit and to pay the idle work fee in the amount of four salaries and seniority (more than 6 months).
D) Objection:
The decision was appealed by the plaintiff and the defendant.
E) Justification:
The plaintiff employee stated that the employment contract had been 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.
While the court decided on the invalidity of the termination and the return of the plaintiff employee to work, it decided that the compensation for not starting work should be in the amount of the plaintiff employee’s 4-month salary.
21 of the Labor Law No. 4857. according to the article, if the court decides that the termination is invalid, if the employee is not hired by the employer within one month upon application, compensation in the amount of at least 4, at most 8 months of wages to be paid to the employee must be determined.
According to the established practice of our department, this compensation, which is an employment guarantee, should be determined by taking into account issues such as the seniority of the employee and the reason for termination. The upper and lower limits of matter cannot be exceeded. The only exception to exceeding the upper limit is Article 31 of the Trade Union Law No. 2821. is the substance. These are denunciations made for trade union reasons in the article. In this article, it is explained that the compensation for non-employment due to trade union reasons will be determined in the amount of at least one annual wage of the employee. The application of our apartment is in this direction. (decision dated 08.04.2008 and numbered 2007/27773, 2008/7819 No.lu ).
Our apartment is about annual paid leave 53. taking into account the seniority periods contained in the article
for honorable workers between 6 months and 5 years, 4 Dec.,
for honorable worker between 5 years and 15 years, Dec.5,
it provides for the determination of non-employment compensation in the amount of 6 months of salary for an employee with more than 15 years of seniority, and the maximum limit for these amounts may be up to 8 months depending on the reason for termination.
According to the content of the file, the plaintiff worker in the concrete dispute is with the plaintiff worker at the defendant’s workplace ……. and between the Decriminalized employer 01.07.2012 ………. as of the date, he started working with an indefinite-term employment contract dated 06.10.2010. The plaintiff employee is working…..
Since it was understood that the employment contract was transferred on 01.07.2012 due to the purchase, it was understood that the plaintiff worked for a total of more than 5 years from 06.10.2010 to 09.10.2015, the employment contract was terminated due to lack of performance, the termination by the employer was not based on a valid reason, the termination was definitively decided to be invalid and the plaintiff was returned to work. However, according to the seniority of the plaintiff employee and the reason for termination, it was not found correct to determine the compensation for not being hired by the court in the amount of the plaintiff’s 4-month salary. The determination of this compensation at the rate of the plaintiff’s 5 monthly fee will be in accordance with the content of the file.
20/3 of the Labor Law No. 4857 by our department. in accordance with the article, the following decision has been taken.
Judgment: For the reasons explained above;
VIOLATION AND ELIMINATION OF the court decision,
INVALIDITY OF TERMINATION and return of the plaintiff to work,
Despite the plaintiff’s application within the legal period, the amount of compensation to be paid if the defendant is not hired by the employer within the period, the plaintiff’s seniority, taking into account the reason for termination, will be determined at the plaintiff’s discretion in the amount of 5 monthly gross wages, the plaintiff,
if he applies to the employer within the period for the return to work of the employee to whom he will be entitled, and for a maximum of 4 months until the decision is finalized, his salary and other rights must be collected from the defendant,
Since the fee is received in advance, there is no place for it to be collected again,
TL 274.50 of the trial expenses incurred by the plaintiff is collected from the defendant and given to the plaintiff, the defendant is left on top of the trial expenses incurred,
The fee in the amount of 2.180,00 TL shall be paid to the plaintiff by taking from the defendant the tariff in force on the date of the decision and giving it to the plaintiff,
in case of request, the claim fee received in advance should be returned to the relevant person,
a final decision was made unanimously on 23.01.2018.