9. Legal Department

Base Number: 2017/12550

Decision Number: 2019/14617

“Case Law Text”

As a result of the case between the parties, the decision was requested by the defendant’s attorney to examine the appeal, and it became clear that the appeal requests were pending Dec. After hearing the report issued by the examination Judge for the case file, the file was examined, the need was discussed and considered:
A) Summary Of The Plaintiff’s Request:
Attorney of the plaintiff; the plaintiff worked at the defendant’s workplace between 02.05.2013-02.09.2014, was a compliant person and did not have problems, due to an incident that occurred on 28.08.2014, the employment contract on 02.09.2014 25/II-Dec. termination pursuant to Article have been, however, that the termination was wrongful, of the gossip in the workplace if you are not in the nature of a conversation, does not disturb the peace of the business operating, and human speech is due to the nature of the groupings in the workplace, the plaintiff’s 14.04.2014 in the history of unfair termination of employment on grounds where a member of a union, and therefore the plaintiff should be paid severance pay, and citing that they have requested; request to have the case decided upon the adoption of and has prosecuted.
B) Summary Of The Respondent’s Response:
The defendant’s attorney; the plaintiff’s co-worker while on the 16.00-24.00 shift on 28.08.2014, Z.T. and general responsible T.O. he claimed that there was an emotional relationship between them. Dec.T.’ eat addressed to “Chief’s pet-friendly and live a life you are looking for you to protect her” throw slander and insulted him by saying, responsible for general discussed with disruptive behavior in the working environment resides days prior to this date, therefore, of the disciplinary committee has taken the decision that the claimant’s employment termination date 02.09.2014 2014/10, by decision of 25/II-d because bullying or another employee of MD 84. 28.08.2014 the day before the date of 21.10 I can not breathe in the ranks of the hospital was sent to the person named Zuhal was given to the company car despite the fact that it is not legal, the hospital checks did not find a finding in the defense of smoking is a mistake, arguing that the decision to dismiss the case was requested.
C) Summary Of Local Court Decision:
By the court, the plaintiff worked at the defendant’s workplace between 02.05.2013 and 02.09.2014, during the discussion of the employment contract with another employee; the employee he discussed lived a friendly life with another employee was terminated because of promises, the dispute was collected at the point of whether the plaintiff’s behavior gives the employer the right to decriminalize termination, 18 of the Labor Code. reasons arising from the conduct of the worker in Article 25 of the same law. according to the article, it was decided that a valid basis for termination can be made if it is not in the weight that gives the right to immediate termination, that the decency of the plaintiff does not significantly disrupt the performance of the work at work, but causes unrest among employees, that it is not justified termination, but a valid basis for termination can be made, so the plaintiff can receive severance and notice compensation.
D) Appeal:
The decision was appealed by the defendant’s attorney at the time.

E) Justification:
1 – according to the articles in the file, the lack of a hit in the value of the evidence, the defendant’s Appeals, which are outside the scope of the following Bend, were not considered in place.
2-18 of the Labor Code 4857. the article gave the employer the authority to terminate the employment contract for reasons arising from the conduct and competence of the employee. The purpose of termination caused by the employee’s behavior is not to punish or sanction behavior contrary to the labor contract that the employee previously committed; it is to avoid the risk of continuing to violate contractual obligations, repeating them. In order for the employment contract to be terminated due to the employee’s behavior, the employee must have a behavior that is contrary to the employment contract and violates the contract. A valid termination arising from the employee’s behavior occurs if he has violated the contract with the employee’s defective behavior and as a result the business relationship has been negatively affected. In contrast, the valid reason for termination caused by the employee’s behavior cannot be mentioned, since the employee cannot be held responsible for his contractual behavior that is not based on defects and negligence.
Reasons arising from the conduct and competence of the worker, 25 of the same law. in addition to the reasons mentioned in the article, although not of this nature, these are the reasons that significantly negatively affect the appearance of work in the workplace. For reasons caused by the employee’s behavior or incompetence, it is necessary to recognize that the termination is based on valid reasons, where the maintenance of the employment relationship cannot be expected to be significant and reasonable from the employer’s point of view.
Termination based on the employee’s behavior , first of all, stipulates that the employment contract is violated by the employee. In this respect, it is necessary to first determine which contractual obligation is imposed on the employee in concrete terms, and then to fully determine which behavior of the employee violates the concrete contractual obligation. No doubt, it should also be examined in this context that the violation of the employee’s employment contract does not weigh on the employer’s right to terminate it immediately. It is then necessary to determine whether the worker can avoid a concrete breach of his obligation if he wanted to. It is essential that the employer’s business interests are damaged due to a concrete breach of contract.

The scope of the obligations of the employee is determined in the individual and collective labor agreement and legal regulations. Violations of the contract caused by the employee as defective (intentional or negligent) become important for the termination of the contract. In order for the valid reason for termination to be mentioned, it is not necessarily necessary for the employee to intentionally violate his contractual obligations. It is sufficient to violate the obligation of care that must be shown by negligence with behavior. In contrast, the employee’s conduct that is not based on his or her fault does not, as a rule, give the employer the right to terminate the contract based on the employee’s conduct. The degree of defect will play a role in the estimated diagnoses of the negatives that the business relationship may present after the termination of the employment contract, and in weighing and balancing the interests.
In determining whether the employee has violated the employment contract, it is necessary to take into account not only the basic performance obligations, but also the side performance obligations and side obligations arising from the law or the honesty rule. My loyalty load, fulfillment of the obligations arising from the contractual relationship of the parties to the contract the opposing personality, ownership, and other legally protected property damage to assets, especially outside the scope of the contractual relationship and the mutual contract endanger the purpose of maintaining the obligation to refrain from any behavior that will shake confidence.
The employer is obliged to prove that the employee has violated his obligations arising from the employment contract as defective.
The employee’s debt to work is embodied by the instructions given by the employer within the scope of the right to manage. The opposite of the employer’s right to rule constitutes the employee’s obligation to comply with the employer’s instructions. In accordance with the right to instruction, the employer regulates where, how and when to perform the work outlined in the employment contract. Instructions for starting and ending the daily working time, how to apply decommissioning, and decommissioning work in the workplace or on the tools, equipment and techniques to be used are accepted among such instructions. The employer’s right to management includes ensuring order in the workplace and instructing the employee’s behavior. In contrast, the employer’s right to instruction cannot be concerned with the amount of wages and the scope of the time of work owed, which constitute the main elements of the employment contract. The employer does not have the authority to unilaterally increase the total working time or reduce it in a way that affects wages. If the employer instructs him to cover the main elements of the employment contract, and the balance between the work and counter-work in the employment contract is decayed, the provisions on job security may be entangled. It is possible that the employer’s right to instruct can be narrowed and expanded by law, collective bargaining agreement and individual labor agreement. In other words, the employer’s right to instruct is limited by the provisions of the law, the collective bargaining agreement and the individual labor agreement. In this respect, the employee is not obliged to comply with such instructions, as the employer cannot give instructions contrary to the provisions of criminal and public law. In addition, the employer cannot give instructions that violate the employee’s personality rights. In addition, in accordance with the Prohibition of abuse of the right set out in Article 2 of the Civil Code, the employer may also not give instructions contrary to the honesty rule. At the moment, the employer cannot give instructions that will create inequality that will result in favor of other workers but against one or more workers, nor can it give instructions to give the employee eza and cefa. Accordingly, the employer is also obliged to comply with equal transaction debt when issuing instructions.
The employee must comply with the instructions given by the employer within the scope of the management right. Failure of the worker to follow the instructions gives the employer the right to a justified or valid termination of the employment contract, depending on the situation. Paragraph (h) of paragraph II of Article 25 of the Labour Code accepts the insistence of the worker not to perform the duties he is charged with, even though he has been reminded, as a reason for his justified termination. In contrast, as stated above, according to the justification of the Labor Code, the employee “performs his job as incomplete, poor or inadequate despite warnings” is the valid reason for termination.
Any improper production or service in a business relationship does not give you the right to terminate the business agreement. In particular, the average production or service error that an employee can be expected to make cannot be the reason for termination of an employment contract. However, a faulty production or service above the tolerance limit, in other words the margin of error that an employee can be expected to make, may be important for the termination of an employment contract. A worker’s less efficient work can be caused by his own desire, as well as his inability. it is often difficult to decipher the boundary between not wanting to perform the act of seeing work and not being able to perform it. The first case is the reason for term termination based on the behavior of the employee in the sense of Article 18 of the Labor Code, while the second case is the reason for term termination caused by the employee’s inadequacy. However, if the worker does not want to perform the Work Act, warning the worker and threatening the worker with termination of the employment contract can have a positive effect. For this reason, in both cases, the warning should be mandatory for the worker. Because, while the warning may have a positive effect on the worker who does not want to perform the work at all or wants to perform the incomplete work, it will not have any positive effect on the worker who has no or incomplete physical competence in terms of seeing work. In this way, it is possible to distinguish between the reason for termination caused by the inability of the employee specified in Article 18 of the Labor Code and the inadequate performance of the work mentioned in the decency and which gives the right to terminate the labor contract due to the behavior of the employee. In this way, an employer who terminates an employment contract, believing that there is no need for a warning with a bet on the existence of a reason for termination caused by the employee’s incompetence, is free from the danger of encountering the consequences of an invalid termination (return to work) caused by the absence of a warning as a result of determining the existence of a reason for termination based on the behavior of the employee.
The debt of obedience to ancillary obligations is now excluded from the rule of honesty. Accordingly, the performance of work should be performed as required by the honesty rule.
The reason for termination caused by the employee’s behavior stipulates an imperfect behavior of the employee.
25 Of The Labour Code. according to paragraph II of Article (d), the employee utters or acts words that touch his honor and honor against the employer or his family, or makes unfounded statements and accusations that violate honor and dignity about the employer, or taunts the employee to the employer or one of his family members, are considered a justified reason for termination. In such cases, Labor is entitled to the 25th Amendment of the Constitution. and 26. he cannot stand the freedom to explain the thought guaranteed by his article. In contrast, if the words made by the employee against the employer who is not of this weight are of a nature to disrupt the working order, the valid reason for termination should be considered. Alayhe words directed not only against the employer, but also against the employer’s representative, which do not have the weight to require justified termination, should be considered the valid reason for termination. As such, the worker, employer, or family member, although not in close relationship with the employer or where the employer is located, or reside in another blasphemy and an insult to people who have a partner in business, these people have a particular notification and unfounded charge to the employer in terms of small businesses that are personally important to do this shall constitute a valid reason for termination of an employment contract. In accordance with provision 25/II, d, the employee’s taunting of another employee of the employer is considered a justified reason for termination. As long as it is not taunting, engaging in continuous and unnecessary discussions with other workers, showing serious lack of livelihood with colleagues is the valid reason for termination(announcement of decision no.2008/12505, based on day 26.05.2008 and 2007/37481 of our apartment)..
25 Of The Labour Code. according to the article, the heavy words that will be evaluated as a result of the instigation of the employee, employer or representative should be considered a valid reason for termination. In constructive and objective terms, no valid termination can be mentioned in the case of criticism related to a particular area of expertise or criticism related to disorders or improprieties in the business.
In a concrete dispute; from the information and documents in the file, the co-worker of the plaintiff is a female employee Z.T.” the chief’s kiss-ass, you live a friendly life, he protects and looks after you for him, ” he said in the complaint filed with the employer regarding this, the plaintiff, who is married, Z.T. and T.O it is understood that he gossiped that they were living a friendly life between them and that this matter was passed on to the administration Dec. In accordance with Article 25/II-d of law 4857, this behavior of the plaintiff is taunting another employee at work and gives the employer the opportunity to justify termination. The plaintiff whose employment contract was rightly terminated had to be denied the full term of seniority notice, while his acceptance was erroneous and required to be overturned.
It was decided unanimously on 01.07.2019 to overturn the appeal decision for the reason described, to return the appeal fee received in advance to the concerned person on request.

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