The Business Relationship Has Become Very Problematic-Termination For Justified Reason

13 May The Business Relationship Has Become Very Problematic-Termination For Justified Reason

T.C. SUPREME
9. Legal Department Principal No: 2017/27210
Decision No: 2018/13713
Decision Date: 25.06.2018
COURT: … DISTRICT COURTHOUSE COURT 10. LEGAL DEPARTMENT
CASE TYPE: RETURN TO WORK
FIRST DEGREE
Court: … 6. EMPLOYMENT TRIBUNAL
Case: the plaintiff decides to rule on the invalidity of the termination, return to work and legal consequences
he asked to be given.
The Local Court has decided to dismiss the case.
The plaintiff’s lawyer filed a motion of appeal against the rejection of the court of First Instance.
… District Court 10. The legal department has the right to accept the appeal of the plaintiff’s attorney, and
he has decided to reinstate the plaintiff.
… District Court 10. Appeal by the defendant’s lawyer within the period of the legal department’s decision
however, after hearing the report prepared by the examining magistrate for the case file.
the file has been examined, discussed and considered as necessary:
THE DECISION OF THE SUPREME COURT
A) Summary Of The Plaintiff Request:
Attorney of the plaintiff, on 27/06/2012 … domestic and Foreign Trade A.P. at the Mall branch of
Bimeks Information Processing and External by changing hands of the company as of November 2013
CommerceP. Continuing the rights of the employees of the previous employer
provided that the defendant company has transferred the work place, after the defendant company has transferred, especially to the unionized workers
that the claimant has pursued a policy of termination of work contracts by acting extremely negatively, exclusionary,
closing the payroll transactions page to force him to resign in the days before his removal, the vault
on 15/11/2014, the claimant verbally stated that, without any written notification, he “disrupted the peace at work despite verbal warnings, did not perform the tasks given”, in case of closure of the code, obstructing his access to the system.
that the termination of the employment contract in the manner, the defendant company’s reason for termination does not reflect the truth, so-called
the reason is that the claimant’s employment contract is terminated because he is a member of the Union, the claimant’s employment
termination by claiming that no disciplinary action has been taken since the date of warning, warning
determination of invalidity and return to work of the plaintiff, law No. 4857 No. 21. The work specified in the article
no. 6356, subject to the application for initiation or non-initiation of the employer,
in accordance with article 25/5 of the law, trade union compensation in the amount of 12 months ‘ wages and idle periods
he demanded and sued for the decision to collect the related 4-month fee from the defendant.
B) Summary Of Respondent’s Response:
Acting defendant, sale of plaintiff at Bimeks store from 21/06/2012 to 14/11/2014
that he was working as an adviser, that the plaintiff’s demands on the case were unfair and procedural,
the termination of the claimant’s employment contract is completely different from the trade union issues stated by the claimant and is justified
based on reasons, the plaintiff does not comply with the defendant’s workplace rules and order, the layout of the store
the responsibilities which he / she is responsible for and which he / she is responsible for habituating contrary attitudes and behaviors
that he insisted on not doing so, that termination became inevitable for the defendant, that the plaintiff
their attitude and behaviour towards customers is not acceptable behaviour, the plaintiff says
On 22/10/2014 he entered into an argument with the customer and was asked to defend it,
upon asking the plaintiff for help, the plaintiff said that he wanted to help the client and that he and the client
arguing that he said bad words to the customer, these issues were identified with the camera records,
since the plaintiff was found to have engaged in conduct that would disturb the peace of work in the store, the work
that the contract has been terminated, that the claimant is not even aware that he is a member of the Union
he pleaded guilty to a motion to dismiss.
C) Summary Of The Court Of First Instance Decision:
By the court of first instance, the plaintiff, the defendant at work between 21.06.2012-17.11.2014
the employer who works as a retail sales employee and with the plaintiff’s code 29 on 31.07.2016
termination of the employment contract by the worker due to his conduct contrary to the rules of ethics and good faith
photo expert on the solution of the CD dated 21.04.2015 in the file, due to his dismissal from work
in his report, the plaintiff argued with a client and physically interfered with each other ,
the answer is given in the history of the Union to warrant a written 23.03.2016 where, on 22.10.2014
written defense of the plaintiff due to the controversy he had with the client, dated 15.11.2014
to the plaintiff in the notice of termination;
written defense of the employment contract due to his behavior, insistence on not doing the tasks he is obliged to do, and his behavior disturbing the peace of work in the store.
25 of the Law No. 4857. According to the article ,the right reason for termination, the CD in the file
the resolution record, the plaintiff’s written defense, the witness statements and the entire scope of the file together
when evaluated, the claimant’s employment contract is due to an altercation and physical altercation with a client; and
due to the plaintiff’s insistence on not doing the tasks he is obliged to do, even though he is reminded of them, according to the articles 25/2-e-h of the law No. 4857, the claimant’s employment contract is justified for the reason
the case was dismissed on the grounds of termination.
D) application for appeal :
Against the decision of the court of first instance, the plaintiff applied for appeal.
E) Why Are You Here?:
The attorney of the plaintiff in the appeal; the court decision is against the procedure and the law, the reason
that it is not based on material facts, that the evidence is not discussed and that there is no legal evaluation,
the defendant witnesses a biased statement as persons who are in a dependency relationship with the defendant company
requests defense and discipline regarding situations where they are found, such as arguing with customers, fighting
the defendant conducting the investigation for no reason other than the case contained in the camera recordings
the plaintiff did not ask for his defense, did not initiate a disciplinary investigation,
many of the issues requested and asked to be investigated in their petitions have not been investigated or evaluated
alleged that.

F) Summary Of District Court Decision:
In the notice of termination dated 15.11.2014 by the District Court of Justice, the plaintiff said: “repeated manner
attitudes and behaviors contrary to the rules and order of the workplace, duties assigned to do
insisting not to do, exhibiting behaviors that disturb the peace of work in the store
the written defense of the employment contract is also evaluated because of the Law No. 4857 25. By Article
it was reported that the termination was due to justifiable reason,” the claimant was charged on 30/12/2013, 22/10/2014 and 12/11/2014
because of their dialogue with the customer in their history and their actions to disturb the peace in the store
the plaintiff’s plea was received, as evidenced by the defence solicitation letter dated 12/11/2014
Sentence of verbal warning to plaintiff after their defence dated 30/12/2013 and 22/10/2014
granted, followed by the defence received on 12/11/2014 after the claimant on 15/11/2014
termination of employment contract but based on the defense of the plaintiff’s behavior is valid or justified
where the defendant’s employer cannot prove the cause, and which is also contained in the file, and
As can be seen in the camera records examined in our apartment, the client personally refers to the plaintiff
he assaulted, the defendant did not fulfill the employer’s obligation to protect the employee, nor did the plaintiff’s obligation to protect the employee.
his act was not cited as the reason for his termination, although the court’s reason for his termination
it is not appropriate for the plaintiff to consider and rule on the dismissal of the case.
2 of Article 353/1-b of HMK with the acceptance of the appeal request for consideration. first as per sub-clause
the decision of the court of degrees was eliminated and the plaintiff’s return to work was decided.

G) appeal :
An appeal was filed against the District Court’s decision by the acting defendant during his term.
H) Rationale:
18 of the Labor Law No. 4857. article refers to the employer, the worker’s behaviour and competence
authorized 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,
avoiding the risk of recurrence. Employment contract due to worker’s behaviour
in order to be terminated, the existence of a conduct of the worker contrary to the employment contract, in breach of the contract
must. Contravened the contract with the defective behavior of the worker and as a result the employment relationship
if it is adversely affected, there is a valid termination resulting from the worker’s conduct.
In return, the worker is charged with contravention of the contract, which is not based on defect and negligence.
the reason for the valid termination resulting from the worker’s conduct as a liability cannot be assumed
nor can it be mentioned.
The reasons for the worker’s conduct and competence are as follows: 25 of the same law. in the article
in addition to the reasons stated, Although not of this nature, it is important to see work in the workplace.
negative effects are the causes. 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.
Termination based on the conduct of the worker, above all, the breach of the employment contract by the worker
it stipulates. In this respect, what contractual obligation is first imposed on the worker in concrete terms
it is determined, then, that the worker is in breach of the concrete contractual obligation by what conduct he or she is
it needs to be fully identified. No doubt, breach of the worker’s employment contract immediately to the employer
it should also be examined in this context that it does not have the weight to give the right to terminate. Later on, the worker’s
determining whether he could have avoided concretely breaching his obligation if he had wanted to
must. Employer’s operational due to worker’s concretely identified breach of contract
it is imperative that their interests are damaged. Avoid breaching the worker’s obligation if
if it is found to have the possibility, whether or not the worker was given a warning before the termination, despite the warning
19 of the Labour Code in case it repeats its behaviour.in accordance with the provisions of the work by taking the defense
it will be looked at whether his contract has been terminated. However, due to severe liability violations
in cases where the employer cannot be expected to continue the employment contract, due to the worker’s behaviour
there will be no need for a warning. In other words, the conduct of the worker in breach of contract
work from the employer, provided that he / she acts in accordance with the contract in the future, in respect of his / her type and weight
in cases where the relationship can be rightly expected to continue, the notice should be necessary and mandatory; otherwise the employer should be able to terminate the employment contract without notice. Accordingly, indefinite termination to the employer
25.as a rule, due to the conditions specified in the article,
it should be accepted that there is no need to issue a warning.
The scope of the worker’s obligations is determined in individual and collective bargaining agreements and legal arrangements. Contract caused by the worker as defective (intentional or negligent)
violations are important in terms of termination of the contract. To be able to mention the valid reason for termination,
it is not necessarily a deliberate breach of the worker’s contractual obligations. You need to show
negligence by violating the duty of care is sufficient to be violated by conduct. In turn, to the worker’s defect
non-based behaviors, as a rule, contract the employer on the basis of the worker’s behavior
it does not give the right to terminate. The extent of the defect is the extent to which the employment relationship after the termination of the employment contract
the estimated diagnoses and benefits of the negativity can be presented and weighed
it will play a role in balancing it.
In determining whether the worker is in breach of the employment contract, it is not just the obligations of the principal;
consideration of subsidiary obligations and subsidiary obligations arising from the law or the code of integrity
must be taken. Obligations arising from contractual relationship to the parties of the contract
failure to harm the person, property and other legally protected assets of the other party in its execution,
in particular, it will endanger the purpose of the contract outside the scope of the contractual relationship.
it imposes an obligation to avoid any behavior that would undermine mutual trust.
To prove to the employer that the worker has violated his obligations arising from the employment contract as a defect
obliged.
The worker’s employment debt is embodied by the instructions given by the employer under the right to govern.
The opposite of the employer’s right to govern constitutes the employee’s obligation to obey the employer’s instructions. Employer,
where, how, according to the right of instruction, the execution of work outlined in the employment contract
and he arranges when to do it. Dec the start and end times of the daily run time
how to apply the rest, the tools and equipment for the distribution or use of the work in the workplace, and
instructions on techniques are accepted as such. Employer’s administration
the right includes the provision of order in the workplace and instruction in the conduct of the worker.

In contrast, the employer’s right to instruction, the amount of the wage, which constitutes the principal elements of the employment contract, and
there is no question about the scope of the work period owed. Employer, unilaterally total
it is not authorized to increase working time or reduce it in a way that affects wages. Employer
to give instructions to cover the essential elements of the employment contract, against the performance in the employment contract
in case of a breakdown of the balance between performance, entanglement of provisions relating to job security promise
could be the subject. The right of the employer to instruct, law, collective bargaining agreement and individual employment agreement
it is possible to collapse and expand with. To be stated in another respect, the employer’s instruction
the right to grant is limited by the provisions of the law, the collective bargaining agreement and the individual labour agreement. Therefore,
since the employer cannot give instructions contrary to the provisions of criminal and public law, the employee shall be entitled to such
he does not have to follow the instructions. In addition, the employer may not issue instructions that violate the employee’s personal rights. Also, the Prohibition of abuse of the right regulated in Article 2 of the Civil Code
as a matter of fact, the employer may not issue instructions contrary to the integrity rule. In this case, the employer is in favor of other workers.
but one or more workers will not be able to give instructions that will create inequality that will result against them.
nor can he give instructions to the worker in order to give eza and suffering. Accordingly, the employer is equal in giving instruction
it is also obliged to comply with the transaction debt. In order for the employment contract to be effectively terminated due to the conduct of the worker,
after the warning is given, he must act again which constitutes a violation of his obligation.
If a new breach of obligation has not occurred after the warning given to the worker, it is only the subject of the warning.
the employment contract cannot be terminated in a valid manner based on conduct. Because with the warning
the employer implicitly waives the right to terminate the employment contract due to conduct subject to notice
has made.
Termination due to conduct, however, is a milder remedy than terminating the contract
when it’s not, it’s necessary. Another tool of the moderation principle other than the caveat is the work place
it is to be replaced. Changing the work place is a lighter remedy than termination.
tool. However, the implementation of this measure is possible from the point of view of the employer and is justified by itself.
it depends on the condition that it can be expected. The possibility to employ the worker in another work place
22 of the Labour Code in accordance with the principle of moderation and the principle of ultima ratio.according to the article
Amendment termination should be considered.
The employee must comply with the instructions given by the employer under the right to govern. Worker’s instructions
failure to comply gives the employer the right to a justified or valid termination of the employment contract, depending on the situation. Labor Code
Paragraph (h) of paragraph II of Article 25, the duties of the worker,
his insistence on not doing so, even though he has been reminded, is considered a justifiable reason for termination. To this
in response, as stated above, according to the rationale of the Labour Code, the worker’s “job to the cautions
although incomplete, poor or inadequate fulfillment ” is the reason for valid termination(our department
17.03.2008 day and 2007 / 27680esas, decision no. 2008/5302).
In the concrete dispute, the claimant’s contract of employment was announced on 15.11.2014 as “the addressee in the store,
repeated violations of workplace rules and regulations in observations made by managers
attitudes and behaviors, which the interlocutor insists on not doing the tasks he is obliged to do,
the addressee is found to exhibit behavior that would disturb the peace of work in the store.
employment contract, Labor Law No. 4857 25. Does not comply with the code of ethics and goodwill of the worker according to the article
due to the justifiable reason for his conduct, the contract of employment has been terminated as of 14.11.2014.”
have been dissolved by called.
On 30.12.2013, the plaintiff allegedly left her alone by responding to a customer in reverse
in the record held on 22.10.2014, the plaintiff is still with a client.
he entered into a discussion, stated that he had physically intervened and insulted the client according to his statements, declared that he had fulfilled his duty in defense of the plaintiff, and accepted the charges
examination of the CD recordings, which have been resolved by the court regarding the case of the controversy,
the plaintiff argued with a client and the plaintiff and the client came towards each other arguing ,
the plaintiff pushed the customer , who was holding his neck, with his hand and the fight was broken up by the shop stewards, the defendant witnesses heard
the contract was terminated after the plaintiff’s insulting argument with the client, and prior to that, the business
he declared that he had a problem with his friends and for these reasons the change of store was also made
they must have. Where these actions of the plaintiff lead to negativity in the workplace, it is no longer possible for the employer to contact the plaintiff
it is understood that the plaintiff’s employment contract cannot be expected to continue working.
termination is based on valid reason and the decision of the court to accept the case instead of rejection
is incorrect.
The decision of the District Court of Appeals to be overturned and eliminated by our department
20/3 of Labor Law No. 4857. in accordance with the article it was necessary to decide as follows.
Provision: with the justification described above;
1.District Court ruling overturned and eliminated,
2. Dismisses case,
3. 35.90 TL to be taken in advance of the decision-ilam fee 25.20 TL.balance with Nin offset 9,70
Collection of TL decision fee from Plaintiff and registration of irat to Treasury,
4. Trial expense of the plaintiff to be left over, the defendant made £ 350.00
collection of trial expenses from the plaintiff and payment to the defendant,
5. The fee of TL 2,180.00 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. Return of unused advances to the relevant person upon request,
7. To return the appeal fee received in advance to the defendant at his request, the first degree of the case file
To send a sample of the decision to the District Court of Justice,
It was definitively decided by unanimous decision on 25/06/2018.