If The Contract Is Terminated Due To Pregnancy, The Employee Is Entitled To Discrimination Compensation
9th Civil Chamber
Principal Number: 2016/1423
Decision Number: 2019/11167
“Case Law Text”
COURT :LABOUR COURT
The appeal of the decision given as a result of the lawsuit between the parties was requested by the plaintiff’s attorney, and it was understood that the appeal requests were in due time. After listening to the report prepared by the Examining Judge for the case file, the file was examined and the necessity was discussed and considered:
JUDGEMENT OF THE COURT
A) Summary of the Claimant’s Request:
The plaintiff’s attorney claimed that his client worked as an occupational safety specialist under the quality directorate in the defendant company between 10/02/2014 and 07/07/2014, that she was dismissed on unfounded grounds such as not being in harmony with her colleagues, having communication problems, having conversations with her manager that do not comply with the framework of respect and not completing her duties, and that the real reason was that she became pregnant, and requested the collection of discrimination compensation and overtime wage receivables from the defendant due to violation of the principle of equal treatment.
B) Summary of the Defendant’s Response:
The defendant’s attorney argued that the plaintiff worked as a workplace safety specialist between 10/02/2014 and 07/07/2014, that she had harmony and communication problems with her colleagues despite being warned verbally at various times, that she made speeches that were not within the framework of respect towards her manager and did not complete her duties, and that she was dismissed for this reason, and that the claim that she was dismissed due to pregnancy was not true, and requested the dismissal of the lawsuit.
C) Summary of the Local Court Decision:
The Court, based on the evidence collected and the expert report, the claimant proved that the claimant claimed that overtime work was done, the claimant should prove that the service contract was actually terminated in bad faith due to the claimant’s pregnancy, the claimant’s witnesses made statements confirming the claim, but their knowledge on the subject was based on hearing from the claimant, apart from that, there was no evidence sufficient to accept that the claim was proven,
It was decided to partially accept the lawsuit on the grounds that the statements of the plaintiff’s witnesses based on what they heard from the plaintiff personally were not sufficient to accept that the claim was proved, moreover, the statements of the defendant witnesses stated that most of the personnel working in the workplace were women and even among them there were those who gave birth, therefore, the plaintiff’s claim that the principle of equality was violated and the contract was terminated in bad faith was not credited.
D) Appeal:
The decision was appealed by the plaintiff’s counsel.
E) Grounds:
1-According to the writings in the case, the evidence collected and the legal grounds on which the decision is based, the plaintiff’s appellate objections other than those covered by the following paragraph are not relevant.
2-The dispute centres on whether the employer has acted contrary to the equal treatment obligation and the consequences of this.
The principle of equal treatment is valid in all areas of law, and in terms of labour law, it imposes an obligation on the employer not to act differently among the employees working in the workplace unless there is a justified and objective reason. In this respect, the employer’s right of management is restricted. In other words, the employer’s prohibition of discrimination prohibits arbitrary discrimination between employees working in the workplace. However, the obligation of equal treatment does not require all workers to be put in the same situation without any difference, but aims to prevent different treatment of workers in equal situations.
The “Principle of Equality” is expressed in the most basic sense in Articles 10 and 55 of the Constitution of the Republic of Turkey, and Article 10 stipulates that “Everyone is equal before the law without distinction as to language, colour, sex, political opinion, philosophical belief, religion, sect and similar grounds”. Article 55 is subtitled as “Ensuring Fairness in Wages”.
Furthermore, the principle of equal treatment has been addressed 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 Conventions and Recommendations of the International Labour Organization.
Article 15 of Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the Application of the Principle of Equal Treatment and Equal Opportunities for Women and Men in Maternity and Professional Matters, entitled “Return from Maternity Leave”, states that “a woman on maternity leave, The employer has the right to return to her job or an equivalent position after the end of her maternity leave under conditions and conditions that are not more disadvantageous for her and to benefit from any improvements in working conditions that she would have benefited from during her absence”, emphasising the equal treatment obligation of the employer in terms of the female employee on maternity leave.
In the systematic of the Labour Law No. 4857, the obligation of equal treatment is among the general obligations of the employer. On the other hand, Article 5, which regulates the principle of equality, does not regulate an absolute equal treatment obligation in all cases. In certain cases, the existence of the employer’s equal treatment obligation has been mentioned. In the decisions of our Chamber, it has been emphasised that this obligation does not exist “unless there are fundamental reasons” and “unless biological reasons or reasons related to the nature of the work make it compulsory” (Court of Cassation 9th HD. 25.7.2008 dated 2008/ 27310 E, 2008/ 22095 K.).
In case there are objective reasons for the employer to apply different practices between the employees, there can be no violation of the equal treatment obligation (Court of Cassation 9.HD. 2.12.2009 dated 2009/33837 E, 2009/ 32939 K).
In the first paragraph of Article 5 of the Law No. 4857, discrimination based on reasons such as language, race, gender, political opinion, philosophical belief, religion and sect is prohibited. All of these issues should be considered within the scope of absolute prohibition of discrimination. In order for the principle of equal treatment to be applied, the conditions of being employees of the same workplace, the existence of a community in the workplace, the existence of a collective practice, unity in time and working under an employment contract are required.
In the second paragraph of Article 5 of the Law, the prohibition of different treatment between full-time and part-time employees and between fixed-term and indefinite-term employees is stipulated, and in the third paragraph, the prohibition of discrimination on the grounds of sex and pregnancy is regulated, and the employer’s obligation to act equally in the termination of the employment contract for such employees is emphasised. However, it is explained in the aforementioned provision that the employer may act differently due to the nature of the work and biological reasons.
In the fourth and fifth paragraphs of the aforementioned article, it is mentioned that the employer cannot discriminate during the performance of the wage payment obligation. It is clear that the wage mentioned here is wage in general terms and includes bonuses, premiums, etc. other than wages.
Furthermore, the prohibition of discrimination based on trade union reasons mentioned in subparagraphs (a) and (b) of the third paragraph of Article 18 of the Law No. 4857 should also be considered within the scope of absolute prohibition of discrimination. The cases listed in Article 5 and the third paragraph of Article 18 of the Law are not regulated in a restrictive manner. The prohibition of discrimination on the grounds of sexual orientation, which does not lead to negative consequences in the workplace, can be added to this list. Again, discrimination based on factors such as political reasons and world view should not be protected.
The sanction for the employer’s breach of the equal treatment obligation is regulated in the sixth paragraph of Article 5 of the aforementioned Law. According to the aforementioned provision, the employee has the right to claim his/her deprived rights in addition to a wage equal to up to four months’ wage. Since the text of the said paragraph is mandatory, the contractual rules contrary to the said provision are invalid. The rule gap arising due to invalidity must be filled in accordance with the requirements of the principle of equal treatment.
Although the burden of proof for the violation of the equal treatment obligation is on the employee, according to the regulation in the last paragraph of the said article, when the employee puts forward evidence that strongly shows the existence of a violation, the employer must prove otherwise.
In the concrete dispute; in the lawsuit petition, it was claimed that the plaintiff was unfairly dismissed from her job, the real reason for the termination was the plaintiff’s pregnancy and that she was discriminated against for this reason, and it was requested to award compensation for violation of the principle of equality stated in Article 5 of Law No. 4857.
According to the file content and e-mail correspondence, it is understood that the plaintiff employee did not have any work that caused negativities in the workplace, on the contrary, her work was appreciated by her manager, the plaintiff notified the defendant employer of her pregnancy with a hospital letter dated 04.07.2014, and then the plaintiff’s manager wrote to the human resources directorate of the workplace on 05.07.2014, stating that they did not want to work with the plaintiff on the grounds that they could not get efficiency from her, whereupon the employer terminated her employment contract on 07.07.2014.
According to the available evidence in the file, it is understood that the employment contract was terminated by discrimination due to the plaintiff’s pregnancy, and the conditions for discrimination compensation have been met. The defendant employer could not prove that there was no violation according to the last paragraph of Article 5 of the Law No. 4857. Taking into account the duration of the plaintiff’s employment, the court should award discrimination compensation within the scope of Article 5 of the aforementioned law, but it is erroneous to decide to reject the compensation claim.
F) Conclusion:
It was unanimously decided on 15.05.2019 that the appealed decision shall be DISMISSED for the reasons written above, and the prepaid appeal fee shall be returned to the relevant person upon request.
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