T.C. SUPREME
\n9. Legal Department Principal No: 2017\/27210
\nDecision No: 2018\/13713
\nDecision Date: 25.06.2018
\nCOURT: … DISTRICT COURTHOUSE COURT 10. LEGAL DEPARTMENT
\nCASE TYPE: RETURN TO WORK
\nFIRST DEGREE
\nCourt: … 6. EMPLOYMENT TRIBUNAL
\nCase: the plaintiff decides to rule on the invalidity of the termination, return to work and legal consequences
\nhe asked to be given.
\nThe Local Court has decided to dismiss the case.
\nThe plaintiff’s lawyer filed a motion of appeal against the rejection of the court of First Instance.
\n… District Court 10. The legal department has the right to accept the appeal of the plaintiff’s attorney, and
\nhe has decided to reinstate the plaintiff.
\n… District Court 10. Appeal by the defendant’s lawyer within the period of the legal department’s decision
\nhowever, after hearing the report prepared by the examining magistrate for the case file.
\nthe file has been examined, discussed and considered as necessary:
\nTHE DECISION OF THE SUPREME COURT
\nA) Summary Of The Plaintiff Request:
\nAttorney of the plaintiff, on 27\/06\/2012 … domestic and Foreign Trade A.P. at the Mall branch of
\nBimeks Information Processing and External by changing hands of the company as of November 2013
\nCommerceP. Continuing the rights of the employees of the previous employer
\nprovided that the defendant company has transferred the work place, after the defendant company has transferred, especially to the unionized workers
\nthat the claimant has pursued a policy of termination of work contracts by acting extremely negatively, exclusionary,
\nclosing the payroll transactions page to force him to resign in the days before his removal, the vault
\non 15\/11\/2014, the claimant verbally stated that, without any written notification, he \u201cdisrupted the peace at work despite verbal warnings, did not perform the tasks given\u201d, in case of closure of the code, obstructing his access to the system.
\nthat the termination of the employment contract in the manner, the defendant company’s reason for termination does not reflect the truth, so-called
\nthe reason is that the claimant’s employment contract is terminated because he is a member of the Union, the claimant’s employment
\ntermination by claiming that no disciplinary action has been taken since the date of warning, warning
\ndetermination of invalidity and return to work of the plaintiff, law No. 4857 No. 21. The work specified in the article
\nno. 6356, subject to the application for initiation or non-initiation of the employer,
\nin accordance with article 25\/5 of the law, trade union compensation in the amount of 12 months ‘ wages and idle periods
\nhe demanded and sued for the decision to collect the related 4-month fee from the defendant.
\nB) Summary Of Respondent’s Response:
\nActing defendant, sale of plaintiff at Bimeks store from 21\/06\/2012 to 14\/11\/2014
\nthat he was working as an adviser, that the plaintiff’s demands on the case were unfair and procedural,
\nthe termination of the claimant’s employment contract is completely different from the trade union issues stated by the claimant and is justified
\nbased on reasons, the plaintiff does not comply with the defendant’s workplace rules and order, the layout of the store
\nthe responsibilities which he \/ she is responsible for and which he \/ she is responsible for habituating contrary attitudes and behaviors
\nthat he insisted on not doing so, that termination became inevitable for the defendant, that the plaintiff
\ntheir attitude and behaviour towards customers is not acceptable behaviour, the plaintiff says
\nOn 22\/10\/2014 he entered into an argument with the customer and was asked to defend it,
\nupon asking the plaintiff for help, the plaintiff said that he wanted to help the client and that he and the client
\narguing that he said bad words to the customer, these issues were identified with the camera records,
\nsince the plaintiff was found to have engaged in conduct that would disturb the peace of work in the store, the work
\nthat the contract has been terminated, that the claimant is not even aware that he is a member of the Union
\nhe pleaded guilty to a motion to dismiss.
\nC) Summary Of The Court Of First Instance Decision:
\nBy the court of first instance, the plaintiff, the defendant at work between 21.06.2012-17.11.2014
\nthe employer who works as a retail sales employee and with the plaintiff’s code 29 on 31.07.2016
\ntermination of the employment contract by the worker due to his conduct contrary to the rules of ethics and good faith
\nphoto expert on the solution of the CD dated 21.04.2015 in the file, due to his dismissal from work
\nin his report, the plaintiff argued with a client and physically interfered with each other ,
\nthe answer is given in the history of the Union to warrant a written 23.03.2016 where, on 22.10.2014
\nwritten defense of the plaintiff due to the controversy he had with the client, dated 15.11.2014
\nto the plaintiff in the notice of termination;
\nwritten 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.
\n25 of the Law No. 4857. According to the article ,the right reason for termination, the CD in the file
\nthe resolution record, the plaintiff’s written defense, the witness statements and the entire scope of the file together
\nwhen evaluated, the claimant’s employment contract is due to an altercation and physical altercation with a client; and
\ndue 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
\nthe case was dismissed on the grounds of termination.
\nD) application for appeal :
\nAgainst the decision of the court of first instance, the plaintiff applied for appeal.
\nE) Why Are You Here?:
\nThe attorney of the plaintiff in the appeal; the court decision is against the procedure and the law, the reason
\nthat it is not based on material facts, that the evidence is not discussed and that there is no legal evaluation,
\nthe defendant witnesses a biased statement as persons who are in a dependency relationship with the defendant company
\nrequests defense and discipline regarding situations where they are found, such as arguing with customers, fighting
\nthe defendant conducting the investigation for no reason other than the case contained in the camera recordings
\nthe plaintiff did not ask for his defense, did not initiate a disciplinary investigation,
\nmany of the issues requested and asked to be investigated in their petitions have not been investigated or evaluated
\nalleged that.<\/p>\n
F) Summary Of District Court Decision:
\nIn the notice of termination dated 15.11.2014 by the District Court of Justice, the plaintiff said: “repeated manner
\nattitudes and behaviors contrary to the rules and order of the workplace, duties assigned to do
\ninsisting not to do, exhibiting behaviors that disturb the peace of work in the store
\nthe written defense of the employment contract is also evaluated because of the Law No. 4857 25. By Article
\nit was reported that the termination was due to justifiable reason,\u201d the claimant was charged on 30\/12\/2013, 22\/10\/2014 and 12\/11\/2014
\nbecause of their dialogue with the customer in their history and their actions to disturb the peace in the store
\nthe plaintiff’s plea was received, as evidenced by the defence solicitation letter dated 12\/11\/2014
\nSentence of verbal warning to plaintiff after their defence dated 30\/12\/2013 and 22\/10\/2014
\ngranted, followed by the defence received on 12\/11\/2014 after the claimant on 15\/11\/2014
\ntermination of employment contract but based on the defense of the plaintiff’s behavior is valid or justified
\nwhere the defendant’s employer cannot prove the cause, and which is also contained in the file, and
\nAs can be seen in the camera records examined in our apartment, the client personally refers to the plaintiff
\nhe assaulted, the defendant did not fulfill the employer’s obligation to protect the employee, nor did the plaintiff’s obligation to protect the employee.
\nhis act was not cited as the reason for his termination, although the court’s reason for his termination
\nit is not appropriate for the plaintiff to consider and rule on the dismissal of the case.
\n2 of Article 353\/1-b of HMK with the acceptance of the appeal request for consideration. first as per sub-clause
\nthe decision of the court of degrees was eliminated and the plaintiff’s return to work was decided.<\/p>\n
G) appeal :
\nAn appeal was filed against the District Court’s decision by the acting defendant during his term.
\nH) Rationale:
\n18 of the Labor Law No. 4857. article refers to the employer, the worker’s behaviour and competence
\nauthorized to terminate the employment contract for reasons arising. From worker’s behaviour
\nthe purpose followed in the termination resulting from the conduct of the worker contrary to the employment contract he had previously committed
\nnot to punish or sanction; to continue to breach its contractual obligations,
\navoiding the risk of recurrence. Employment contract due to worker’s behaviour
\nin order to be terminated, the existence of a conduct of the worker contrary to the employment contract, in breach of the contract
\nmust. Contravened the contract with the defective behavior of the worker and as a result the employment relationship
\nif it is adversely affected, there is a valid termination resulting from the worker’s conduct.
\nIn return, the worker is charged with contravention of the contract, which is not based on defect and negligence.
\nthe reason for the valid termination resulting from the worker’s conduct as a liability cannot be assumed
\nnor can it be mentioned.
\nThe reasons for the worker’s conduct and competence are as follows: 25 of the same law. in the article
\nin addition to the reasons stated, Although not of this nature, it is important to see work in the workplace.
\nnegative effects are the causes. Caused by the worker’s behavior or incapacity
\nfor reasons, it is important and reasonable for the employer to maintain the working relationship
\nwhere it cannot be expected, it will be necessary to accept that the termination is based on valid reasons.
\nTermination based on the conduct of the worker, above all, the breach of the employment contract by the worker
\nit stipulates. In this respect, what contractual obligation is first imposed on the worker in concrete terms
\nit is determined, then, that the worker is in breach of the concrete contractual obligation by what conduct he or she is
\nit needs to be fully identified. No doubt, breach of the worker’s employment contract immediately to the employer
\nit 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
\ndetermining whether he could have avoided concretely breaching his obligation if he had wanted to
\nmust. Employer’s operational due to worker’s concretely identified breach of contract
\nit is imperative that their interests are damaged. Avoid breaching the worker’s obligation if
\nif it is found to have the possibility, whether or not the worker was given a warning before the termination, despite the warning
\n19 of the Labour Code in case it repeats its behaviour.in accordance with the provisions of the work by taking the defense
\nit will be looked at whether his contract has been terminated. However, due to severe liability violations
\nin cases where the employer cannot be expected to continue the employment contract, due to the worker’s behaviour
\nthere will be no need for a warning. In other words, the conduct of the worker in breach of contract
\nwork from the employer, provided that he \/ she acts in accordance with the contract in the future, in respect of his \/ her type and weight
\nin 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
\n25.as a rule, due to the conditions specified in the article,
\nit should be accepted that there is no need to issue a warning.
\nThe 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)
\nviolations are important in terms of termination of the contract. To be able to mention the valid reason for termination,
\nit is not necessarily a deliberate breach of the worker’s contractual obligations. You need to show
\nnegligence by violating the duty of care is sufficient to be violated by conduct. In turn, to the worker’s defect
\nnon-based behaviors, as a rule, contract the employer on the basis of the worker’s behavior
\nit 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
\nthe estimated diagnoses and benefits of the negativity can be presented and weighed
\nit will play a role in balancing it.
\nIn determining whether the worker is in breach of the employment contract, it is not just the obligations of the principal;
\nconsideration of subsidiary obligations and subsidiary obligations arising from the law or the code of integrity
\nmust be taken. Obligations arising from contractual relationship to the parties of the contract
\nfailure to harm the person, property and other legally protected assets of the other party in its execution,
\nin particular, it will endanger the purpose of the contract outside the scope of the contractual relationship.
\nit imposes an obligation to avoid any behavior that would undermine mutual trust.
\nTo prove to the employer that the worker has violated his obligations arising from the employment contract as a defect
\nobliged.
\nThe worker’s employment debt is embodied by the instructions given by the employer under the right to govern.
\nThe opposite of the employer’s right to govern constitutes the employee’s obligation to obey the employer’s instructions. Employer,
\nwhere, how, according to the right of instruction, the execution of work outlined in the employment contract
\nand he arranges when to do it. Dec the start and end times of the daily run time
\nhow to apply the rest, the tools and equipment for the distribution or use of the work in the workplace, and
\ninstructions on techniques are accepted as such. Employer’s administration
\nthe right includes the provision of order in the workplace and instruction in the conduct of the worker.<\/p>\n
In contrast, the employer’s right to instruction, the amount of the wage, which constitutes the principal elements of the employment contract, and
\nthere is no question about the scope of the work period owed. Employer, unilaterally total
\nit is not authorized to increase working time or reduce it in a way that affects wages. Employer
\nto give instructions to cover the essential elements of the employment contract, against the performance in the employment contract
\nin case of a breakdown of the balance between performance, entanglement of provisions relating to job security promise
\ncould be the subject. The right of the employer to instruct, law, collective bargaining agreement and individual employment agreement
\nit is possible to collapse and expand with. To be stated in another respect, the employer’s instruction
\nthe right to grant is limited by the provisions of the law, the collective bargaining agreement and the individual labour agreement. Therefore,
\nsince the employer cannot give instructions contrary to the provisions of criminal and public law, the employee shall be entitled to such
\nhe 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
\nas 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.
\nbut one or more workers will not be able to give instructions that will create inequality that will result against them.
\nnor can he give instructions to the worker in order to give eza and suffering. Accordingly, the employer is equal in giving instruction
\nit 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,
\nafter the warning is given, he must act again which constitutes a violation of his obligation.
\nIf a new breach of obligation has not occurred after the warning given to the worker, it is only the subject of the warning.
\nthe employment contract cannot be terminated in a valid manner based on conduct. Because with the warning
\nthe employer implicitly waives the right to terminate the employment contract due to conduct subject to notice
\nhas made.
\nTermination due to conduct, however, is a milder remedy than terminating the contract
\nwhen it’s not, it’s necessary. Another tool of the moderation principle other than the caveat is the work place
\nit is to be replaced. Changing the work place is a lighter remedy than termination.
\ntool. However, the implementation of this measure is possible from the point of view of the employer and is justified by itself.
\nit depends on the condition that it can be expected. The possibility to employ the worker in another work place
\n22 of the Labour Code in accordance with the principle of moderation and the principle of ultima ratio.according to the article
\nAmendment termination should be considered.
\nThe employee must comply with the instructions given by the employer under the right to govern. Worker’s instructions
\nfailure to comply gives the employer the right to a justified or valid termination of the employment contract, depending on the situation. Labor Code
\nParagraph (h) of paragraph II of Article 25, the duties of the worker,
\nhis insistence on not doing so, even though he has been reminded, is considered a justifiable reason for termination. To this
\nin response, as stated above, according to the rationale of the Labour Code, the worker’s \u201cjob to the cautions
\nalthough incomplete, poor or inadequate fulfillment ” is the reason for valid termination(our department
\n17.03.2008 day and 2007 \/ 27680esas, decision no. 2008\/5302).
\nIn the concrete dispute, the claimant’s contract of employment was announced on 15.11.2014 as \u201cthe addressee in the store,
\nrepeated violations of workplace rules and regulations in observations made by managers
\nattitudes and behaviors, which the interlocutor insists on not doing the tasks he is obliged to do,
\nthe addressee is found to exhibit behavior that would disturb the peace of work in the store.
\nemployment contract, Labor Law No. 4857 25. Does not comply with the code of ethics and goodwill of the worker according to the article
\ndue to the justifiable reason for his conduct, the contract of employment has been terminated as of 14.11.2014.\u201d
\nhave been dissolved by called.
\nOn 30.12.2013, the plaintiff allegedly left her alone by responding to a customer in reverse
\nin the record held on 22.10.2014, the plaintiff is still with a client.
\nhe 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
\nexamination of the CD recordings, which have been resolved by the court regarding the case of the controversy,
\nthe plaintiff argued with a client and the plaintiff and the client came towards each other arguing ,
\nthe 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
\nthe contract was terminated after the plaintiff’s insulting argument with the client, and prior to that, the business
\nhe declared that he had a problem with his friends and for these reasons the change of store was also made
\nthey 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
\nit is understood that the plaintiff’s employment contract cannot be expected to continue working.
\ntermination is based on valid reason and the decision of the court to accept the case instead of rejection
\nis incorrect.
\nThe decision of the District Court of Appeals to be overturned and eliminated by our department
\n20\/3 of Labor Law No. 4857. in accordance with the article it was necessary to decide as follows.
\nProvision: with the justification described above;
\n1.District Court ruling overturned and eliminated,
\n2. Dismisses case,
\n3. 35.90 TL to be taken in advance of the decision-ilam fee 25.20 TL.balance with Nin offset 9,70
\nCollection of TL decision fee from Plaintiff and registration of irat to Treasury,
\n4. Trial expense of the plaintiff to be left over, the defendant made \u00a3 350.00
\ncollection of trial expenses from the plaintiff and payment to the defendant,
\n5. 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
\nto be taken and given to the defendant,
\n6. Return of unused advances to the relevant person upon request,
\n7. To return the appeal fee received in advance to the defendant at his request, the first degree of the case file
\nTo send a sample of the decision to the District Court of Justice,
\nIt was definitively decided by unanimous decision on 25\/06\/2018.<\/p>\n","protected":false},"excerpt":{"rendered":"
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…<\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[1],"tags":[217,223,524,218,526,525],"yoast_head":"\n