Resignation Petition Cannot Be Made Conditional
General Assembly of Civil Chambers 2016/2628 E. , 2018/103 K.
“Case Law Text”
COURT :Labour Court
At the end of the trial held due to the “labour receivables” lawsuit between the parties; Upon the request of the plaintiff’s attorney for the appellate review of the decision dated 02.04.2015 and numbered 2014/158 E., 2015/240 K. given by Ankara 12th Labour Court on the dismissal of the lawsuit, the decision of the 22nd Civil Chamber of the Court of Cassation dated 18.06.2015 and numbered 2015/15217 E, 2015/20942 K;
“…The plaintiff’s attorney stated that the plaintiff worked for the defendant company, that the 100% public share in the capital of Başkent Doğalgaz Dağıtım A.Ş. was privatised through privatisation, … Gıda San. Tic. A.Ş., after the privatisation, in order to terminate their employment contracts in their own favour by the company officials, in order to ensure that they benefit from Article 4/C of the Civil Servants Law No. 657, they received a signed petition stating “I want to switch to 4/C status without prejudice to all my legal rights within the scope of Law No. 4046 due to privatisation”, and that the petitions given did not reflect the truth and were taken under pressure, and requested the collection of the notice pay and clothing allowance receivables from the defendant with interest.
The defendant’s attorney stated that the plaintiff terminated the employment contract with his own will and volition, that he left the job by submitting a signed petition, that his legal rights were paid, and requested the dismissal of the lawsuit.
The court ruled that the defendant company was privatised as a result of … Gıda ve San. ve Tic. A.Ş. A.Ş. as a result of privatisation, within the scope of the six-month period before and after the transfer, within one month from the termination, the request and opportunity to transfer within the scope of 4/C of Law No. 657 to the employees within the scope of privatisation was announced to the plaintiff employee, and the plaintiff notified that he wanted to transfer to 4/C with a signed declaration, renewed his request for transition to the scope of 4/C by using the notification period and signed a release, continued to work in other public institutions within the scope of 4/C as of the date of the lawsuit, in order for the employee to be entitled to the notice compensation,
the employment contract must be terminated by the employer for an unfair and valid reason, It was decided to dismiss the case on the grounds that there is no job search in the transfer from public workplaces to other public workplaces, and that the payment of notice pay cannot be in question, that the plaintiff did not have the conditions to require notice pay since the plaintiff requested transfer with his free will, that the clothing allowance is an aid to be made in advance at the beginning of November and for the year to be worked in the same workplace, and that the clothing allowance request of the plaintiff, who requested transfer for the second time, for the next year was not appropriate.
The decision was appealed by the plaintiff within the legal period.
1- According to the writings in the file, the evidence gathered and the legal grounds on which the decision is based, the plaintiff’s objections to the appeal other than the scope of the following paragraph are not relevant.
2-There is a dispute between the parties in terms of notice periods and notice pay.
In general, the “right of termination” is a right that gives the right to terminate the employment contract immediately or with the passage of a certain period of time with a unilateral declaration of will that must be directed to the other party. The immediate termination of the employment contract for just cause is regulated in Article 24 of the Labour Law No. 4857. The legal regulation of the termination notice of the employee is regulated in Article 17 of the same Law. Apart from this, the resignation of the employee is not specifically regulated in the law. The termination of the employment contract by the employee without a justified reason and without giving a notice period should be considered as resignation.
The labour relationship ends when the resignation is received by the other party. Although the acceptance of the resignation by the employer is not mandatory, if the petition is not processed by the employer and the employee continues to work in the workplace, a real resignation cannot be mentioned. However, if the parties agree to work for a certain period of time despite the resignation, it should be accepted that the employment contract is terminated by way of rescission at the end of the agreed period. Conditional resignation is not valid as a rule. As it is most commonly encountered in practice, the employee’s request to resign on the condition of payment of notice and severance pay rights should not be considered as a resignation, but as an agreement to conclude a rescission agreement.
Although this type of termination is not included in the Labour Law, a mutual termination agreement (icap) is established when one of the parties makes a statement (icap) to the other party, followed by the other party’s acceptance of the mutual termination of the employment contract. In the offer in the rescission agreement, the labour relationship is directed to terminate by agreement with the appropriate declaration of will of the other party. For this reason, the invitation to conclude a rescission agreement cannot be considered as a termination and cannot be converted into a termination.
Although it is possible for each of the parties to terminate the labour relationship with a declaration that gives rise to a reversal innovation, it is also necessary to dwell on the reasons why they do not go this way and terminate it by mutual agreement. First of all, the offeror must have a reasonable benefit to conclude a cancellation agreement. In addition, the conditions specified in the offer must be accepted by the other party in the same way in order to establish a revocation agreement. In the event that the wills of the parties are not united in terms of termination and its consequences, there can be no talk of rescission. Likewise, after one party’s declaration of will to terminate the contract, the other party’s direct termination of the contract does not mean that the other party has accepted the invitation.
On the other hand, Article 21 of the Law No. 4046 on Privatisation Practices Article 21 of the Law No. 4046 on Privatisation Practices stipulates that “Due to the preparation for privatisation, privatisation, downsizing or partial or complete cessation of activities, permanent or indefinite closure or liquidation of the institutions (excluding subsidiaries) included in the scope of privatisation according to this Law; those who work for wages based on an employment contract in these institutions, whose employment contracts have been terminated in such a way that they are entitled to compensation in accordance with the labour laws and collective labour agreements to which they are subject, are paid compensation for job loss in addition to their compensation arising from the laws and collective labour agreements in force”.
According to the file content, the defendant workplace was transferred to … Gıda San. Tic. A.Ş. A.Ş. at the end of the privatisation practices, after the privatisation of the defendant, the Council of Ministers reminded the plaintiff of his rights to transition within six months from the transfer to work in the 4/C status in public institutions, the plaintiff stated that he had used the notification periods due to privatisation and that he wanted to switch to 4/C status within the scope of Law No. 4046, without prejudice to his rights arising from severance pay and collective labour agreement until the date of termination of the employment relationship, and then,
In the event of a reduction in employment due to the transfer of the workplace, it is understood that the plaintiff requested that he be given priority on the condition that his rights arising from the legal and collective labour agreement are paid and all his rights are reserved, and upon these requests, the defendant employer terminated the employment contract by stating that the plaintiff’s employment was not needed due to the privatisation of the company, and the plaintiff signed the release on the condition that his collective labour agreement and legal rights were reserved.
In the concrete case, the plaintiff’s request for termination of the employment contract by reserving the collective labour agreement and legal rights to work within the scope of 4/C in public institutions is conditional and cannot be qualified as a resignation since there is no statement of will for termination directly by the plaintiff, nor is it considered as a termination since it is a statement of will (icap) to make a break contract. The plaintiff reserved his rights arising from the law and collective labour agreement.
The defendant did not pay notice pay. In this case, it cannot be concluded that the acceptance of the invitation for the cancellation agreement has been accepted. Because the wills of the parties did not unite in the direction of termination and its consequences. It cannot be said that the employment contract was terminated by the plaintiff by resignation or by both parties by way of rescission.
It is stated that the plaintiff’s employment contract was terminated by the defendant employer without giving a deadline pursuant to Article 21 of the Law No. 4046, and in Article 21 of the Law No. 4046, “…those who work for wages based on an employment contract in these institutions, whose employment contracts have been terminated in such a way that they are entitled to compensation in accordance with the labour laws and collective labour agreements to which they are subject, …. “,
while it is obvious that it should be accepted that the plaintiff’s employment contract was terminated by the employer in accordance with the labour laws and collective labour agreements to which they are subject, considering the decision of the Supreme Court of Appeals General Assembly of Civil Chambers dated 14.01.2015 and numbered 2013/22-2033, 2015/31, the decision to reject the notice compensation instead of accepting it is contrary to the procedure and law and requires reversal…”
The decision was reversed and the file was returned to its place, and at the end of the retrial, the court resisted the previous decision.
DECISION OF THE GENERAL ASSEMBLY OF LAW
After it was understood that the decision of resistance was appealed in due time and the documents in the file were read, the General Assembly of Civil Chambers discussed the necessity:
The lawsuit is related to the claim for the collection of labour receivables.
The plaintiff’s attorney claimed that his client’s employment contract was terminated on 18.11.2013 by the defendant employer on the grounds that “there was no need for employment due to the privatisation of the company”, that he was not given a 15-week notice period in accordance with the provisions of the collective bargaining agreement, and that his salary corresponding to the 15-week period was not paid in advance, that the defendant company, which did not comply with the notification requirement, is obliged to pay notice compensation in the amount of the salary for the notification period, and that there are also receivables arising from the collective bargaining agreement, and requested a decision to collect the labour receivables.
Defendant attorney defended the dismissal of the lawsuit by stating that the plaintiff’s employment contract was terminated based on the petitions submitted to his client, that the plaintiff was not entitled to notice compensation and that he had no receivables.
The court stated that from the documents in the file, the defendant employer was privatised and the … Gıda ve San. ve Tic. A.Ş. A.Ş. as a result of privatisation, the request and opportunity to switch to the 4/C scope of Law No. 657 was announced to the plaintiff employee, the plaintiff notified with a signed statement that he wanted to switch to 4/C, renewed his request to switch to the 4/C scope by using the notice period and signed a release, and continued to work in other public institutions within the scope of 4/C as of the date of the lawsuit,
In order for the plaintiff to be entitled to notice compensation, the employment contract must be terminated by the employer for an unfair and valid reason, there is no job search in the transfer from public workplaces to other public workplaces and no notice compensation will be paid, the date of termination of the employment contract was notified to the plaintiff with the possibility of transfer to other public institutions, and then the request for transition to the scope of 4/C was accepted, the conditions to require the notice compensation for the time provided to look for a job or a worker did not occur, because the plaintiff requested the transfer with his free will, the risk of job loss is always possible in indefinite-term employment contracts, the plaintiff also requested to transfer to the public workplace,
and it was deemed unlawful to both transfer to the public workplace and to request notice compensation, Otherwise, it would cause unjust enrichment, the clothing allowance is regulated in the collective labour agreement, and it was decided to dismiss the lawsuit on the grounds that the clothing allowance request of the plaintiff, who requested to be transferred for the second time before the aid made in advance at the beginning of November and for the year to be worked at the same workplace, was not deemed appropriate.
Upon the appeal of the plaintiff’s attorney, the judgement was reversed by the Special Chamber for the reasons explained above.
The court decided to resist on the grounds that many lawsuits were filed to Ankara Labour Courts on the same subject, the decisions given in the file numbered 2014/233 Esas of Ankara 9th Labour Court, in the file numbered 2014/255 Esas of Ankara 1st Labour Court, in the file numbered 2014/39 Esas of Ankara 19th Labour Court, in the file numbered 2014/51 Esas of Ankara 15th Labour Court were approved by the Court of Cassation, and since the Court of Cassation is a case law court, there should be unity between the decisions given in the same cases that are the subject of the lawsuit.
Decision of resisting was appealed by the plaintiff’s attorney.
The dispute, which came before the General Assembly of Civil Chambers by way of resistance, centres on whether the plaintiff’s employment contract was terminated by the plaintiff employee through resignation, by the parties through a mutual termination agreement or by the defendant employer, and whether the plaintiff will be entitled to notice compensation according to the result to be reached here.
While the reasons for the termination of the employment contract are death, termination and expiry of the term in fixed-term employment contracts, the termination of the employment contract by rescission has started to be widely used as a reason for termination after the provisions of job security that entered into force on 15 March 2003 with the Law No. 4773 amending the Labour Law No. 1475 and especially after the Labour Law No. 4857.
For this reason, it is useful to make an explanation about the rescission agreement.
The termination of the employment contract by the agreement of the parties is not regulated as a reason for termination, and rescission as a type of contract that terminates the contract is not defined in the Code of Obligations No. 818 and the Turkish Code of Obligations No. 6098. For this reason, there is no provision in our legislation that defines and regulates the rescission agreement as a special type of contract. Although there is no legal definition, the elimination of a contract and the legal relationship established by this contract with a new contract based on the mutual will of the parties within the scope of freedom of contract is defined as a cancellation, and the contract related to this is defined as a cancellation (rescission) contract (Astarlı, M.: İkale in Labour Law, Ankara 2013 p. 6).
Since it is a contract, the general provisions of the Turkish Code of Obligations regulating contractual debt relations also apply to the rescission agreement. The rescission agreement is established by mutual and compatible declarations of will of the employee and the employer, who are parties to the contract. The first of these mutual declarations of will is called offer and the second is called acceptance. In order for the contract to be valid, the wills of the parties must be mutual and compatible with each other. This conformity must be on all objective and subjective essential points of the contract.
The objective essential point of the rescission agreement is the termination of the labour relationship by agreement on a certain date (Astarlı, age, p. 53). If the parties agree on the essential points of the contract, the contract is deemed to be concluded even if the secondary points are not emphasised (Art. 2/f.1 of the TCO). Points that are not the essential points of the contract are secondary points (Kocayusufpaşaoğlu Necip, Kocayusufpaşaoğlu/ Hatemi/Serozan /Arpacı, Law of Obligations General Section, Volume One, Legal Transaction, Contract, Istanbul, 2010, p.176).
The parties may agree on the essential points of the contract and establish a contract by excluding the secondary side points from the negotiation, or they may transform the secondary side point into a mandatory condition of the contract. It is not possible to conclude a rescission agreement without agreeing on this issue, which has become a subjective essential point of the contract for one party (Astarlı, age, p.57).
Incidentally, it would be useful to briefly mention termination, which is one of the reasons terminating the employment contract.
As it is known, the notice of termination is a unilateral declaration of will, and this declaration can be used to terminate the contract by giving a period of time in indefinite-term service contracts, or it can be used to terminate fixed or indefinite-term contracts without giving a period of time by the employee or the employer, based on just cause. For this reason, the termination notice in employment contracts is a unilateral declaration of will that must be directed to the other party, which terminates the contract with the expiration of a certain period of time or immediately, and it results when it reaches the addressee.
In labour contracts, the right to give notice of termination is granted to both parties as a rule. Since the notice of termination is a right that gives rise to novelty in terms of its legal nature, there is no need for the acceptance of the other party, as it will result in the declaration reaching the other party. Since the labour contract will be terminated with the notice of termination, which is the use of a right that gives rise to a disruptive innovation, the notice must be made in a specific and clear manner.
For this reason, the desire of the party giving the notice of termination to terminate the contract must be clearly understood from the notice. For this reason, statements in the form of an offer or question, which do not clearly indicate the intention to terminate the contract, cannot be considered as a notice of termination (Çelik, N.; İş Hukuk Dersleri, Beta, 26th Edition, İstanbul 2013, p. 205).
The notice pay arising as a result of the termination is a compensation to be paid to the other party by the party who terminates the indefinite-term employment contract without a just cause and without giving a proper notice period. Accordingly, firstly, if the employment contract is terminated without just cause as stipulated in Articles 24 and 25 of the Labour Law No. 4857 and if the notice period is not duly granted as stipulated in Article 17 of the Labour Law No. 4857, the notice indemnity must be paid.
When the concrete case is evaluated in the light of these explanations, as a result of the defendant company being subjected to the privatisation process, 20.10. 2004/7898 numbered Decision of the Council of Ministers, which entered into force after being published in the Official Gazette dated 20.10.2004 and numbered 25169, in order to benefit from the regulation that those whose employment contracts are terminated by the private sector within six months at the latest from the date of privatisation can be employed within the scope of Article 4/C of the Law No. 657 on Civil Servants, if they apply to the Privatisation Administration within thirty days following the termination in person or through the company they work for. 11.2013 dated 12.11.2013,
the plaintiff notified the defendant company that he wished to switch to the status of 4/C subparagraph within the scope of Law No. 4046, without prejudice to his rights arising from severance pay and collective labour agreement, and the defendant sent a letter dated 18.11.2013 with the title “termination notification notification” addressed to the plaintiff and stated that “…your petition dated …has been examined and your employment is not needed due to the privatisation of our company. For this reason, it has been decided to terminate your employment contract as of the date of notification of this termination notice to you…” and the said notification was notified to the plaintiff on the same date.
On the other hand, the release dated 14.12.2013, which is included in the file, was signed by the plaintiff on the condition that all legal rights arising from the collective labour agreement were reserved, and 32 (termination due to privatisation according to Article 21 of the Law No. 4046) was reported as the termination code in the notice of termination of employment of the plaintiff.
The petition submitted by the plaintiff to the defendant employer, reserving his rights to work within the scope of 4/C, is in the nature of an agreement to terminate the employment contract by way of rescission. Considering that the contract was terminated with the notice of termination sent to the plaintiff by the defendant employer, but the notice pay was not paid, the existence of a rescission agreement cannot be mentioned since the will of the parties regarding the payment of the notice pay was not agreed.
On the other hand, since the plaintiff did not make a statement of will that he directly terminated the employment contract, it cannot be concluded that the employment contract was terminated by the plaintiff employee by resigning.
In the notice of termination of employment given by the defendant employer to the Social Security Institution, the reason for the termination of the employment contract is stated in Article 21 of the Law No. 4046 on Privatisation Practices as “… …”, it is necessary to accept that the plaintiff’s employment contract was terminated by the employer in accordance with the labour laws and collective labour agreements to which they are subject, in a way to be entitled to notice compensation.
As a matter of fact, the same conclusion was reached in the decision of the General Assembly of Civil Chambers dated 14.01.2015 and numbered 2013/22-2033 E., 2015/31 K.
As such, it is contrary to the procedure and the law to resist the previous decision while the Special Chamber reversal decision adopted by the General Assembly of Civil Chambers should be complied with.
For the reasons explained, the decision of resistance should be reversed.
CONCLUSION:
It was unanimously decided on 24.01.2018, with the acceptance of the appellate objections of the plaintiff’s attorney, that the decision of resistance be reversed for the reasons shown in the Special Chamber’s reversal decision, and that the pre-appeal fee be returned to the depositor if requested, with the way of decision correction closed.
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