Supreme Court of Appeals, 11th Civil Chamber
Case Number: 2017/3251
Decision Number: 2019/805
“Text of Justice”
COURT: … REGIONAL COURT OF APPEALS …. CIVIL CHAMBER
IN THE NAME OF THE TURKISH NATION
In the case heard between the parties… Upon the defendant’s attorney’s objection to the decision of the 7th Civil Commercial Court dated 11/28/2016 and numbered 2015/320 E. – 2016/777 K., regarding the acceptance of the appeal request… Regional Court of Appeals… The Court of Cassation requested a review of the decision of the Civil Chamber dated 20/04/2017 and numbered 2017/143-2017/175, and it was determined that the appeal petition was filed within the time limit. After reading and examining the petition, petitions, hearing minutes, and all documents, the matter was discussed and decided as follows:
The plaintiff’s representative stated that, pursuant to Article 5 of the service contract between the client and the defendant, the defendant cannot disclose workplace secrets belonging to the defendant and the customer environment to third parties during the term of employment, cannot be employed in another job (fax server) in the same field within 6 months after the termination of the employment contract, and the client is directly or indirectly responsible for this situation.
7 Gen Information and Communication Services Ltd. Co., alleged that the defendant communicated with the plaintiff’s customers via computer within six months of the termination of the employment contract, establishing commercial connections in a virtual environment, and that this violated the non-competition clause. The plaintiff demanded and sued for the collection of the penalty clause amounting to USD 50,000, which was the effective selling price of the Central Bank of the Republic of Turkey on the actual payment date, plus interest based on the exchange rate.
T he defendant’s attorney objected to jurisdiction and, while awaiting a decision, argued that the employment contract was terminated because the client failed to pay his rights, that the penalty clause was invalid because it was written solely against the employee, that the termination of the contract rendered the penalty clause void, that the client did not engage in any activity that would require a penalty clause, that the plaintiff did not work in another job related to the subject of the activity, that the clause was excessive and should be criticized, and requested that the case be dismissed.
The court of first instance, based on the scope of the case, the defense, the expert report, and the entire file, determined that a service contract dated 05….. 2000, that Article 5 of the service contract stipulates a 6-month non-competition clause from the end of the contract, and that a penalty of USD 50,000.00 shall be paid in case of any violation, as determined in file no.
11.06.2009, … From the 7th Labor Court’s file no. 2002/1603; it was accepted that the service contract was terminated unjustly by the plaintiff, and it was decided to collect the defendant’s employee receivables. Even if the contract was terminated unjustly, this situation does not eliminate the employee’s obligation to maintain confidentiality. The non-competition clause in Article 5/d of the contract is deemed to apply for a period of 6 months from the termination of the contract and includes the obligation to maintain confidentiality. Therefore, the claim was accepted on the grounds that the defendant violated the obligation to maintain confidentiality, and it was decided that the defendant’s claim of USD 50,000 from the date of the claim, together with interest accruing in accordance with Article 4/a of Law No. 3095, should be collected.
The defendant’s attorney has filed an appeal against the decision.
… Th e Regional Court of Justice, within the scope of the entire file; in the case filed by the defendant regarding employee claims in the file numbered 2007/20 – 2009/821, dated …/11/2009, of the 7th Labor Court, it was accepted that the employment contract was terminated in a manner that did not entitle the employee to seniority and notice compensation.
The compensation claims were rejected, The decision became final following review by the Court of Cassation, and it was understood that the absence of geographical restrictions in the non-competition clause of the service contract signed by the defendant would cause the employee to suffer economic ruin, that this situation was contrary to legal regulations regarding freedom of work and freedom of contract, and that only the customer list appeared on the defendant’s computer.
It was not sufficient to prove that the defendant caused damage to the plaintiff by using this list to benefit himself or a third party, and the plaintiff’s lawsuit against the third party for the same legal reason was dismissed without prosecution. Th e court of first instance’s decision was upheld on the grounds that the contract provision relating to the grave was invalid and that a penalty clause could not be claimed based on an invalid contract.
The case was dismissed by the decision.
The Regional Court of Appeal’s decision was appealed by the plaintiff’s representative.1- Provisional Law No. 6100, Article … Paragraph “Regarding decisions issued before the commencement of duties of regional courts of appeal, the provisions of Articles 427 to 454 of Law No. 1086, as amended by Law No. 5236 dated 09/09/2004, shall continue to apply until they become final.
Files related to these decisions cannot be sent to regional courts of appeal.” Based on the above summary of the grounds, the first instance court’s decision dated 28.11.2016 regarding the acceptance of the case was issued after the regional courts of appeal began their duties. The decision dated July 7, 2016, was examined together with decisions numbered 2014/30815 and 2014/34794, and it is clear that the judgment is subject to review by way of appeal in accordance with the aforementioned article of the Law. In this context, the fact that the court of first instance indicated the appeal route in the operative part of the decision will not change the outcome.
Therefore, the file has been sent to the Regional Court of Appeal. … While the Chamber of Justice should have ruled that the petition requesting the filing of a lawsuit against the decision of the court of first instance was an appeal request and referred the file to our Chamber, it was necessary to enter into the substance of the case and decide to dismiss the case in accordance with Article 353/1-b-… of the Code of Civil Procedure, and the decision of the court of first instance was overturned.The decision was not correct, and the defendant’s attorney’s appeal against the first instance court’s decision was accepted by the Regional Court of Appeal. The decision of the Legal Department dated 20.04.2017, with case number 2017/143 and decision number 2017/175, has been overturned and annulled, and the defendant’s attorney’s objection to the first instance court’s decision must be examined.
…-
The case concerns the claim for the collection of a penalty clause arising from a competition ban. In the specific dispute, the Turkish Code of Obligations No. 818 was in force as of the date of termination of the contract concluded between the parties, and the provisions of Articles 348 and 349 of the Turkish Code of Obligations shall apply to the dispute.
Required. The provision regarding the non-competition clause in Article 5 of the service contract dated 05…..2000 concluded between the parties does not contain any geographical restrictions. Articles 48 et seq. of the Constitution of the Republic of Turkey, under the heading Freedom of Work and Contract, constitutionally guarantee that everyone has the freedom to work and enter into contracts in any field they choose.
Pursuant to Article 349 (Article 445) of the Labor Law No. 818 of Law No. 6098, a non-competition clause shall not be valid if it does not contain restrictions that are equitable in terms of place, time, and subject matter, which would jeopardize the economic future of the employee. In the specific case, the absence of geographical restrictions in the non-competition clause of the service contract between the parties, which could unjustly jeopardize the employee’s economic future, requires that the contractual provision regarding freedom of work and non-competition be deemed invalid in accordance with the legal regulations explained above. While the court should have taken this into account in its decision, its acceptance based on written grounds was not appropriate, and the decision was therefore overturned.
CONCLUSION:
For the reasons explained in paragraph (1) above, the decision of the Regional Court of Justice, Civil Chamber, dated 20.04.2017, with case number 2017/143 and decision number 2017/175, was overturned and the additional fine was revoked. and the defendant’s attorney’s appeal against the first instance court’s decision was accepted for the reasons explained in paragraph (…), and it was unanimously decided on February 4, 2019.
.