13 Apr Does The Employer Have He Right To Terminate The Contract If The Worker Receives Frequent Leave
T.C.
SUPREME
9. LEGAL DEPARTMENT
E. 2016/29524
K. 2017/12122
T. 6.7.2017
The plaintiff has decided that the termination is invalid, returned to work and its legal consequences will be ruled
he must have wanted to.
The Local Court has decided to accept the case.
An appeal has been made by the defendant’s lawyer during the sentencing period, and the trial judge for the case file
after listening to the report held by the file was examined, the need to be discussed and considered:
Verdict: a -) summary of Plaintiff request:
Attorney for the plaintiff, the most recent editor at the defendant’s workplace from 09/01/2015 to 31/08/2015
in the writing of the defendant’s employer’s termination declaration that he worked as; his client often reported falling ill
Aldi, the idea that various illnesses are caused by work stress and the location of the company where he works
considering the fact that there will be no change in the conditions of the media sector it receives
in case of possession, the situation in the workplace affects the normal functioning,
claims that it causes disruption and negativity and hinders the maintenance of the service relationship
the termination of the employment contract by the employer is not based on a valid reason.,
in the first three years of his client’s employment, he took almost no leave of absence due to illness and
he’s on sick leave not more than a day or two a year, but in the last year of his work, he’s stressed out.
he said that he had to report more frequently due to diseases caused by these diseases.
the resulting reports do not exceed a total of 10-12 days within a year, as well as the client’s reported
that day, even from home that has the right to work, are doing work almost 7 days a week,
that the plaintiff did not even use the annual leave, that his client was ill and took the Leave
It is possible to cause disruptions and negativity in the workplace (such as shingles and diabetes)
that he is not, that his client is in constant contact with his team-mates as long as he works at his employer,
the plaintiff said that even on the days when it was reported, he gave guidance and information to his friends from home.
stating that the employment contract was terminated without valid reason,
he asked to be extradited.
B -) Summary Of Respondent’s Response:
The defendant’s employer’s attorney is the owner of the plaintiff’s Haber Türk TV, and the plaintiff’s Haber Türk
He said he worked as an editor in the culture and Arts Unit of television, and asked for the plaintiff’s defence, and
prior to the termination process, he received 20 reports and used 40 days of reports in total.
in addition to reporting days, Doctor’s examinations, traffic jams, etc. reasons allowed many times
if the claimant does not come to work full day or part day by making an excuse, the contract of employment is terminated.
last 6 months prior to the period of the manager … ‘ a late arrival due to migraines, due to traffic
sending SMS in the form that he can’t make it to the meeting, that he stays on the road, that he will go to the doctor’s examination
reporting to the news meeting with unit managers that takes place between 9.25 and 10.15 am each day
continuous disturbance, inspection, traffic congestion etc. citing the circumstances and not participating, plaintiff
in this way, often receiving reports and making excuses leads to negativity in the workplace,
as to the fact that he did not appoint a replacement to enter the meeting and that the plaintiff lived in relation to his work
his statements about the troubles, stating that work stress had reached the point where he was going to make himself sick, have long been
his approach to his job is assessed, causing disruption and negativity in the workplace, and service
by paying all legal rights to the contract of employment which are deemed to be hindrance to the continuation of the relationship
he argued that it was annulled and that the case should be dismissed.
C) Summary Of Local Court Decision:
At the end of the trial by the court, the defendant of the plaintiff who was not in the position of acting employer
he started his employment in the workplace under an indefinite employment contract on 09/2011, most recently as editor
Employment Law No. 4857 of the employment contract on 31/08/2015 by the defendant employer while he was working
17. and 18. in accordance with the article terminated, within 1 month of the right to withdraw this case has been filed
the plaintiff’s seniority as of the date of termination is more than 6 months, and he or she has more than 30 workers in his or her workplace.
where the worker is employed, the claimant is within the scope of job security and the legal proceedings are filed
it was found to be of benefit and accepted. As a result of all these determinations, on the burden of proof
examination of all records of the plaintiff worker submitted to the file by the defendant found; termination
according to the reason in the declaration, the claimant’s duty description, efficiency, the corporate principles of the Employer, Compliance
whether the required workplace rules are objectively and concretely pre-determined or not
the plaintiff often reports and makes excuses when examining the witness statements
finally, a replacement is about to enter the meeting, which leads to workplace negativity.
his failure to take charge and the plaintiff’s statements about the troubles he had with his job, the stress of the job itself
stating that he has reached the point of making him sick, considering his approach to his job for a long time, he is at work
claims that it causes glitches and negatives and hinders the maintenance of the service relationship
if a termination is made, the claimant is reported at the specified dates.
where there is no dispute between the parties, with which flawed conduct of the action attributed to the plaintiff worker
defendant that he acted in breach of contract and as a result his business relationship was adversely affected
the employer shall, in its entirety and in its entirety, specify on which material fact it is based, clearly
the breach of the contract, which cannot be revealed, by contrast, is not based on the fault and negligence of the worker
since the worker cannot be held responsible for his behavior, he cannot be held responsible for his behavior.
the duty of the claimant, working conditions, where the reason for valid termination cannot be mentioned
direct business without any warning or warning due to the actions attributed to the plaintiff
on the grounds that termination of the contract would constitute a violation of the principle that termination should be a last resort
his acceptance is decided.
D -) Appeal:
The defendant’s attorney appealed the decision.
E -) Rationale:
20/II of Labor Law No. 4857.c.Clearly in Article 1, proof that termination is based on valid reasons
the burden was given to the defendant’s employer.
In fulfilling the burden of proof, the employer will first prove that it complies with the formal conditions of termination.
Accordingly, the termination of the written notice, in certain cases, the defense of the worker is requested
documentation of the reasons for termination based on the content of the written termination as concrete and clear
he must have shown it. Once it is understood that the employer has fulfilled the formal conditions, the content
the stage of proving that the reasons for termination are valid (or justified) will be passed.
18 Of The Labor Law No. 4857. article refers to the employer, the worker’s behaviour and competence
it has given the authority to terminate the employment contract for reasons arising. From worker’s behaviour
the purpose followed in the termination resulting from the conduct of the worker contrary to the employment contract he had previously committed
not to punish or sanction; to continue to breach its contractual obligations,
it is to avoid the possibility of a repeat. Termination of employment contract due to worker’s behavior
in order for the employee to act contrary to the labor contract, a violation of the contract must exist. Labour’s flawed
he contravened the contract with his conduct and as a result his business relationship was in a negative way
if affected, there is a valid termination resulting from the worker’s conduct. By contrast, Labour’s
a liability to the worker for his conduct contrary to the contract, which is not based on defect or negligence
the reason for valid termination resulting from the worker’s conduct as it cannot be installed
it can’t be mentioned.
The reasons for the worker’s behaviour and competence are stated in Article 25 of the same act. in the article
besides the stated reasons, although not of this nature, it is important to see work in the workplaces
causes that affect the extent negatively. Caused by the worker’s behavior or incapacity
for reasons, it is important and reasonable for the employer to maintain the working relationship
where it cannot be expected, it will be necessary to accept that the termination is based on valid reasons.
The employer with the burden of proof is responsible for the plaintiff’s conduct or inadequacy in the valid and justified cause.
it must also prove that it leads to negativity in the workplace and that the working relationship becomes unbearable.
On the other hand, the reasons of the Labor Law which are valid termination due to the inadequacy of the worker
one of the examples that he would bestow upon the right is getting sick frequently and receiving reports.
In case of receiving frequent reports, the employer will not be able to benefit from the employee’s employment, albeit intermittently. Often
the absence of the worker, who is frequently ill and receiving reports, will therefore lead to negative effects in the workplace.
it is an obvious phenomenon. The reason for being sick frequently in the rationale of the Labour Code is the reason for competence
to be considered as an example is to accept that it leads to negativity in the workplace.
18/3 Of The Employment Law No. 4857 Of Employers. in accordance with article f 25/I. of the same lawunder Article b
in addition, the employee may not terminate the employment contract within the six-week waiting period. But the worker’s
frequent reports, including intermittent, do not fall within this coverage. Total in case of frequent reports
even if the time it is reported remains within the waiting period, frequent reporting can lead to downsides in the workplace.
if it is opened, the employee’s employment contract may be terminated with notice or for a period of time. In this case the termination is valid
it’s based on reason.
According to the file contents, the plaintiff was 9 times in 2015, 5 times in 2014, 3 times in 2013 and 2 times in 2012
he received 39 days of reports in total, which he repeated frequently in 2015, although other years were not taken into account,
in fact, it is understood that this situation is also accepted by the court. Plaintiff’s frequent
there are reports that he was late for meetings or did not attend by stating that he was going to the doctor.
there were also reports that he did not attend and did not report. Claimant’s most recently received
in his defense, he reported having problems with his supervisor, his psychology deteriorated and his discomfort was caused by
he said he took it.
According to these concrete material and legal facts, the claimant attended the meetings late whether he received a report or not.
or not attending, having problems with their supervisor at work, receiving frequent reports and meetings
it is understood that his failure to attend has led to downsides in the workplace. Behavior and yield with cause
termination from a worker’s perspective, which leads to workplace negativity and makes the continuation of the work relationship unbearable
there can be no mention of the principle of last resort. Because the termination is based on valid reasons, the case
acceptance by written justification instead of rejection is wrong.
In accordance with Article 20/3 of the Labour Law No. 4857, our office has decided as follows.
Conclusion: with the reason described above;
1.Overturning the court’s decision,
2.Dismisses case,
3.Since the tuition is received in advance, there is no room for re-receipt,
4.To be left over the prosecution expense of the plaintiff,
5.The fee of TL 1,980.00 determined according to the tariff in force at the date of the decision is from the claimant of the power of attorney
to be taken and given to the defendant,
6.On 06.07.2017, the appeal fee received in advance will be returned to the defendant upon request.
it was a unanimous decision.
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