9. Legal Department
Base Number: 2016/1423
Decision Number: 2019/11167
“Case Law Text”
COURT :EMPLOYMENT TRIBUNAL
As a result of the case between the parties, the decision was requested by the attorney of the plaintiff to examine the appeal, and it became clear that the appeal requests were decidedly pending. After hearing the report issued by the examination Judge for the case file, the file was examined, the need was discussed and considered:
SUPREME COURT DECISION
A) Summary Of The Plaintiff’s Request:
The plaintiff’s Attorney, his client 10/02/2014-connected the defendant to the quality Department of the company between the dates 07/07/2014 working as a specialist in safety, communication problems with live incompatible colleagues, the manager and the tasks have to be completed with respect fit into the frame making speeches that have been laid off as the real reason to get pregnant for unfounded reasons, citing the principle of equal consideration of overtime claims for compensation from the defendant with a violation of discrimination due to his education he wanted.
B) Summary Of Respondent’s Response:
The defendant’s counsel, plaintiff’s 10/02/2014-workplace safety 07/07/2014 dates between serving as an expert at various times, although verbally warned, colleagues, coordination and communication problems, the administrator which is not made speeches and their tasks within the framework of respect for the reason that have not completed the claim that he was fired due to pregnancy also have been laid off that is not true, arguing that a dismissal has asked for.
C) Summary Of Local Court Decision:
Based on the expert report and the evidence collected by the court, the plaintiff proves you’re made claims, overtime, termination of the service contract because the plaintiff must prove she is actually pregnant as malicious statements to reflect the plaintiff alleged that the claim of the prosecution witnesses, although there are information about the subject of the plaintiff is based he hears from out of it enough to accept any evidence that proves the claim in the absence of the plaintiff’s witnesses personally based on what you heard from the plaintiff, it is not enough to accept the claim that proves accounts, however, it was decided to partially accept the case on the grounds that from the statements of the defendant’s witnesses, it was stated that many of the employees working in the workplace were women and even those who gave birth among them, so the plaintiff was acting contrary to the principle of equality and the claim that akdin was decriminalized in bad faith.
The plaintiff’s attorney appealed the decision.
1-according to the articles in the file, the evidence collected and the legal reasons on which the decision is based, the plaintiff’s Appeals, which are outside the scope of the following bend, are not in place.
2-the dispute is collected at the point of whether the employer acts contrary to the debt of equal treatment and its consequences.
The principle of equal treatment applies in all areas of law, and from the point of view of labor law, the employer owes the employer not to behave differently among employees working in the workplace, unless there is a deceptive and objective reason. In this regard, the employer’s right to management is limited. In other words, the employer’s decriminalization ban prohibits arbitrary discrimination between employees working in the workplace. However, the debt of equal treatment does not require that all workers be put in the same situation without any differences, and it aims to prevent workers in equal status from being treated differently.
” The principle of equality ” in the most basic sense T.C. In Articles 10 and 55 of the Constitution, the rule “Everyone is equal before the law without discrimination for reasons of language, color, sex, political thought, philosophical belief, religion, sect and similar” is stated in Article 10. The edge title of Article 55 is “ensuring fairness in wages”.
In addition, the principle of equal behavior has also been discussed in various forms in the Universal Declaration of human rights, the European Convention on human rights, the European Social Charter, the Treaty of the European Economic Community, The International Labour Organization’s conventions and recommendations.
Equality of opportunity in matters of employment and occupation and the implementation of the principle of equal treatment for men and women of the European Parliament and of the Council of 5 July 2006 on 2006/54/EC Directive “Maternity (Childbirth) leave return from titled” Article 15, “a woman’s maternity leave or an equivalent position after the expiry of maternity work himself into more disadvantaged non-working conditions and the terms and conditions in any way that would be benefited to get back in during the absence, has the right to take advantage of improvements” in the form of the rule is given in, from the point of view of female workers using maternity leave, emphasis was placed on the employer’s debt of equal treatment.
In the system of the Labor Law No. 4857, the debt of equal decency has taken its place among the debts of the employer in general terms. However, in Article 5, which regulates the principle of equality, an absolute debt of equal treatment is not regulated in all cases. In certain cases, it has been mentioned that the employer has a debt of equal treatment. In the decisions of our department, it is emphasized that this obligation does not exist “ unless there are fundamental reasons” and “reasons related to the nature of biological or work are mandatory” (Supreme Court 9.HD. 25.7.2008 Day 2008 / 27310 E, 2008 / 22095 K.).
An employer cannot talk about contravention of equal transaction debt if there are objective reasons for different practices among employees( Supreme Court 9 dec.HD. 2.12.2009 day, 2009/33837 B, 2009/32939 D).
In the first paragraph of Article 5 of law 4857, a ban on discrimination based on reasons such as language, race, sex, political thought, philosophical belief, religion and sect was introduced. All of these mentioned issues must be addressed within the scope of the absolute prohibition of discrimination. In order for the principle of equal behavior to be applied, conditions are required to be workers of the same workplace, to have a community in the workplace, to have collective practice, to work with unity and employment contract at the time.
In the second paragraph of Article 5 of the law, a ban on different transactions between a full – term – partial-term employee and a certain-indefinite-term employee was provided, and in the third paragraph, a ban on discrimination due to sex and pregnancy was regulated, and in this case, the employer’s debt of equal decency was emphasized at the termination of the employment contract for employees. However, it is explained in the said provision that the employer may behave differently for biological reasons with the nature of the work.
Again, in the fourth and fifth paragraphs of the mentioned article, it is mentioned that the employer cannot distinguish during the performance of the wage payment debt. Bonus, pirim v., where the fee mentioned here is a fee in the general sense and is outside the feeb. it is understood it also covers payments.
Furthermore, the Prohibition of discrimination based on trade union reasons mentioned in paragraphs (a) and (B) of the third paragraph of Article 18 of law 4857 should also be considered within the scope of the absolute prohibition of discrimination. The cases counted in Article 5 of the law and the third paragraph of Article 18 are not regulated as limiting. A ban on discrimination due to the sexual preference of the employee, which does not lead to negativity in the workplace, can also be added to this. Again, discrimination based on elements such as political reasons and worldview should not be protected.
The sanction of the employer for acting contrary to the debt of equal treatment is regulated in the sixth paragraph of Article 5 of the mentioned law. According to the said provision, the employee has the opportunity to claim his or her rights, other than a wage of up to four months. Since the text of the paragraph in question is of an ordered nature, the rules of the contract that contradict the said provision are invalid. The rule gap arising from invalidity must be filled in accordance with the requirements of the principle of equal treatment.
Although the burden of proving the violation of the debt of equal behavior is on the employee, the opposite must be proved by the employer when the employee puts forward evidence strongly indicating the existence of the violation in accordance with the regulation contained in the last paragraph of the said Article.
5 of law 4857, claiming that the plaintiff was unfairly dismissed from his job in the petition, that the real reason for the termination was the plaintiff’s pregnancy and therefore he was discriminated against. it has been requested to rule on compensation for contravention of the principle of equality set out in the article.
The file contents, and e-mail correspondence, according to a study of the worker in the workplace negativity that causes the absence of the plaintiff, on the contrary, the manager of his works was appreciated by the defendant informed the plaintiff’s letter dated 04.07.2014 hospital, which works with the pregnancy, then the plaintiff’s dated 05.07.2014 article written by a manager in the workplace Human Resources Directorate, the plaintiff asked to work with him on the grounds from where you can’t yield reported that upon this, the labour contract the employer is understood to have been terminated on the date of the 07.07.2014.
According to the current evidence in the file, it is understood that the employment contract was terminated due to discrimination due to the plaintiff’s pregnancy, and the conditions of discrimination compensation were formed. If the defendant is an employer, 5 of law 4857. according to the last paragraph of the article, he could not prove that a violation did not exist. 5 of the law, which is understood by the court, taking into account the duration of the plaintiff’s work. in accordance with the article, discrimination compensation should be ruled, while the decision to reject the claim for compensation is wrong.
A unanimous decision was made on 15.05.2019 to overturn the appeal decision due to the reasons written above, to return the appeal fee received in advance to the relevant person on request.