T.C. SUPREME

9.Legal Department
Basis: 2016/36192
Verdict: 2018/998
Decision Date: 23.01.2018

Summary: since the plaintiff worked for more than 5 years, the employment contract was terminated due to lack of performance, the termination performed by the employer was not based on valid reasons, it is appropriate to decide the invalidity of the termination and the return of the plaintiff to work. However, according to the seniority of the plaintiff worker and the reason for termination, it was not right for the court to determine the compensation for not starting work in the amount of the plaintiff’s 4-month wage. The determination of this compensation at the rate of the claimant’s 5-month fee will be in accordance with the contents of the file.

Lawsuit: the plaintiff requested that the termination be ruled invalid, reinstated and legal consequences.

The Local Court has decided to accept the case.

After hearing the report issued by the examination Judge for the case file, the file was examined, the need was discussed and considered, although it was appealed by the lawyers of the parties during the sentencing period.:

THE DECISION OF THE SUPREME COURT

A) Summary Of The Plaintiff Request:

The attorney of the plaintiff has stated in the petition that the plaintiff works as a worker in the defendant company and that the employment contract has been terminated as invalid and unfair, and has requested that 4 salary idle time fees and 8 gross salary compensation for not starting work be decided.

B) Summary Of Respondent’s Response:

The defendant’s attorney in his reply petition summarily requested the dismissal of the case, arguing that the termination of the contract of employment of the plaintiff was based on a valid and justified reason.

C) Summary Of Local Court Decision:

In evaluating the evidence collected by the court and the scope of the entire file; the plaintiff has been working for more than six months with an indefinite term employment contract with the defendant party, the number of workers employed by the defendant party is more than thirty, the case has been opened within thirty days according to the termination date of the employment contract, the plaintiff’s workplace is not the acting employer of the whole referral and managing, the, since it is understood that it is not in accordance with the principle of equal treatment among employees and termination as a last resort, it is decided that in terms of the plaintiff’s request, the compensation for non-starting work shall be decided according to the acceptance of the Subut bulan case and the idle time wage of four salaries and seniority (more than 6 months).

D) Appeal:

The plaintiff and defendant appealed the decision.

E) Citing:

Stating that the employment contract was terminated by the defendant employer without valid reason, the plaintiff worker requested that the termination be nullified and that his return to work be decided.

While the court decided the invalidity of the termination and the return to work of the plaintiff worker, the compensation for not starting work was determined in the amount of 4 months ‘ wages of the plaintiff worker.

21 of the Labor Law No. 4857. in accordance with the article, when it is decided by the court to invalidate the termination, if work is not started within one month by the employer upon the application of the worker, compensation in the amount of at least 4 months or more than 8 months shall be determined to be paid to the worker.In accordance with the established practice of our department, this compensation which is a job guarantee must be determined by taking into account the seniority of the worker and the reason for his termination. The upper and lower limits of the substance cannot be exceeded. The only exception to exceeding the upper limit is Section 31 of the Trade Unions Act No. 2821. it is the annulment made by the trade union reason in the article. In this article, it is explained that in case of Union reasons, the compensation for not starting work shall be determined in the amount of at least one year’s wage of the worker. This is the application of our apartment. (08.04.2008 day and 2007/27773 basis, 2008/7819 Decree No.).

Our apartment is 53rd annual paid leave. taking into account the seniority periods in the article;

4 for workers with seniority between 6 months and 5 years,
5 for workers with seniority between 5 years and 15 years,
For workers with seniority of more than 15 years, the maximum limit for these amounts is up to 8 months, according to the reason for termination.
According to the contents of the file, the plaintiff has started work in the work place belonging to the defendant with an indefinite term employment contract dated 06.10.2010 between the plaintiff worker and ……and as of 01.07.2012 the defendant employer……………………… the plaintiff worker is working ….. since it is understood that the employment contract was transferred on 01.07.2012 due to the purchase, therefore the plaintiff worked for more than 5 years between 06.10.2010-09.10.2015, the employment contract was terminated due to lack of performance, the termination performed by the employer was not based on the valid reason, the invalidity of the termination and the return of the plaintiff However, according to the seniority of the plaintiff worker and the reason for termination, it was not right for the court to determine the compensation for not starting work in the amount of the plaintiff’s 4-month wage. The determination of this compensation at the rate of the claimant’s 5-month fee will be in accordance with the contents of the file.

In accordance with Article 20/3 of Labour Law No. 4857, our office has decided as follows.

Provision: with the justification described above;

Overturning the court’s decision,
Invalidity of termination and return of Plaintiff to work,
The amount of compensation to be paid in case the defendant does not start work within the employer period despite the application of the plaintiff within the legal period shall be determined in the amount of 5 months gross wage of the plaintiff, which is appreciated by taking into account the seniority of the plaintiff and the reason for termination,
In case the claimant worker applies to the employer for return to work within the period, the right shall be earned and up to 4 months until the decision is finalised, wages and other rights shall be collected from the defendant.,
Since the tuition is received in advance, there is no room for re-receipt,
Trial expense of TL 274.50 made by the plaintiff to be collected from the defendant and to be given to the plaintiff, to be left over the trial expense made by the defendant,
The fee of TL 2,180.00 determined according to the tariff in force at the date of the decision is to be taken from the defendant and given to the plaintiff,
Return of the appeal fee received in advance to the relevant person upon request,
It was definitively decided by unanimous decision on 23.01.2018.