19 Apr The Use Of The Right To Complain, Which Does Not Constitute Slander Or An Attack On The Rights Of Persons, Cannot Be Made a Reason For Termination
Summary:
It is a constitutional right of the plaintiff to file a complaint against the employer that he or she has been subjected to mobbing. If the complaint is the exercise of a right, there is no justifiable or valid reason for termination unless it is slander or an attack on the rights of the person, it is a reason for the court to decide to dismiss the case in writing with an erroneous evaluation instead of acceptance.
T.C.
Supreme
8. Legal Department
Principal No: 2014/1440
Decision No: 2014/13116
K. Historical:
Case: the plaintiff requested that the termination be void and that he be returned to work.
The Local Court has decided to dismiss the case.
After hearing the report issued by the trial judge for the case file, the file was examined, the case was discussed and considered as necessary, although it was appealed by the plaintiff’s lawyer during the sentencing period.:
SUPREME COURT DECISION
A) Summary Of The Plaintiff Request:
Acting plaintiff; he said that his client worked as a sales and marketing officer at the defendant’s workplace between 05.01.2011-02.04.2012, mobbing was applied to the plaintiff, he conveyed it to the management as a healer, the pressure to resign instead of a solution increased, the events in the notice dated 23.02.2012 sent via notary public were transferred, he filed a complaint with the Attorney General of Istanbul on 28.03.2012,, he demanded that the termination be invalidated and the claimant’s return to work, compensation be decided, with the declaration that the complaint did not give the employer the right to terminate for a justified reason.
B) Summary Of Respondent’s Response:
Acting defendant; he stated that 20 customer visits per week take place, that the plaintiff can perform 15 of the number of visits by betting since he is treated for varicose veins, that he has made 8 customer visits between 6-14. 02. 2012, that he has worked until late at night by sending a notice on 23.02.2012, that he has been, The defense of 14.2.2012 was answered with the notary public’s notice dated 1.3.2012, the notice dated 27.03.2012 reminded him of what is expected of him, his insistence on not fulfilling the duties he was assigned was decided to terminate the employment contract on 02.04.2012, the plaintiff’s employment contract was terminated according to Article 25/II of the Labor Law numbered 4857,
C) Summary Of Local Court Decision:
The court decided to dismiss the case on the grounds that the plaintiff’s mobbing claim was not proven and that the plaintiff’s complaint against another worker was covered by the right of complaint, which is a constitutional right, but considering the complaint process, investigation stage, warnings, warnings and defense letters issued by the defendant’s employer, the plaintiff’s actions led to negativity at work and the continuation of the
D) Appeal:
The plaintiff’s attorney appealed the decision.
E) Citing:
In a concrete case the plaintiff’s employment contract; fails to fulfill the number of customer visits, which is 20 a week, due to illness, with the plaintiff’s suggestion, this number was reduced to 15% below that of the plaintiff, although to visit, also with a criminal complaint to the public prosecutor about the plaintiff’s general manager unfounded charge, due to 4857 m.Defunct under 25 / II.
According to the contents of the file, it is understood that the plaintiff was first asked to defend on 14.02.2012 that he did not make the weekly customer visit, and that the termination was made on 02.04.2012. There is no data in the file on the fact that the number of weekly 20 customer visits required by the plaintiff was determined in advance as objective, concrete, measurable and communicated to the plaintiff, as well as the number of visits expected from the plaintiff due to his discomfort, although the number of visits expected from the plaintiff was reduced, considering that there was not enough time, a period of approximately 2 months to measure the plaintiff’s performance could not be considered sufficient, so it was understood that the reason stated in the notice of termination was not in place.
It was observed that the plaintiff was forced to resign at work on 28.03.2012 on charges of mobbing, that the number of visits was constantly monitored and pressured to increase, and that the general manager had been subjected to the humiliation of “unskilled staff do not even have your desk” against him, and filed a criminal complaint with the Public Prosecutor’s Office. It is understood that the reason for the termination was also that the plaintiff made unfounded accusations in the notice of termination. As a result of the investigation, the allegations were not supported, the legal elements of the crime did not occur, and it was decided that there was no place for prosecution by stating that the information contained in the mobbing could be filed with the employment courts. It is a constitutional right of the plaintiff to file a complaint against the employer that he or she has been subjected to mobbing. Complaint made; the exercise of a right is a cause of disruption, when it is overlooked that there can be no justifiable or valid reason for termination unless it is a libel or an attack on the rights of the person, and the decision by the court to dismiss the case in writing with an erroneous evaluation instead of acceptance.
Article 20 of the Labor Law No. 4857 Article 3. in accordance with the paragraph, the provision had to be abolished by overturning and decided as follows.
Provision: for the reasons stated above;
1-the court’S decision on the date and number mentioned above to be overturned and eliminated,
2-invalidity of termination made by employer and return of claimant to work,
3-If the plaintiff has applied for the job within the legal period, the amount of compensation to be paid in case the employer does not start the job within the term of the employer shall be determined as a four-month wage taking into account the reason for termination and seniority.,
4-if the claimant applies to the employer for return to work within the period, the right to be earned and born until the final decision of the maximum four-month wage and other rights should be paid to the claimant to determine, if any, the notice and severance pay paid in the case of the claimant’s,
5-There is no place to re-take the mortar in advance,
6-since the plaintiff is represented by the attorney, the attorney fee of 1,500 TL is taken from the defendant and given to the plaintiff according to the tariff in force at the date of the decision.,
7-trial expense of TL 329.00 made by the plaintiff to be taken from the defendant and given to the plaintiff, to be left over the trial expense made by the defendant,
8-it was decided by unanimous decision on 17.04.2014 to return the appeal fee received in advance to the interested party upon request.
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