Termination Of The Employment Contract Of The Employee Who Gossips About Another Employee
9th Civil Chamber
Principal Number: 2017/12550
Decision Number: 2019/14617
“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 defendant’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; the plaintiff worked at the defendant workplace between 02.05.2013-02.09.2014, he was a harmonious person and did not have any problems, his employment contract was terminated on 02.09.2014 in accordance with Article 25/II-d. due to an incident that took place on 28.08.2014, but the termination was unfair, if there was a conversation at the workplace, it was not in the nature of gossip, it did not disturb the workplace working peace, it is the nature of human nature to have groupings and conversations in the workplace, the plaintiff was a union member on 14. 04.04.2014 that the plaintiff was a union member and his employment contract was terminated on unfair grounds, therefore, the plaintiff should be paid severance and notice pay and that they demanded; demanded and sued for the decision to accept the lawsuit.
B) Summary of the Defendant’s Reply:
The defendant’s attorney; while the plaintiff was on the 16.00-24.00 shift on 28.08.2014, the plaintiff alleged that there was an emotional relationship between his colleague, Z.T. and the general supervisor T.Ö., and that he slandered and insulted Z.T. by saying “you live a friendly life with your supervisor’s lackey, he protects and protects you for him”, argued with the general supervisor …, argued with the general supervisor …, had behaviours that disrupted the working environment on the days preceding this date, and for this reason, he was dismissed with the decision of the disciplinary board dated 02.09. 2014 dated 02.09.2014 and numbered 2014/10,
the plaintiff’s employment contract was terminated due to 25/II-d article due to teasing another worker or acting contrary to article 84, again, the day before 28.08.2014, at around 21.10, he was sent to the hospital saying that he could not breathe around 21.10, he was accompanied by a person named Zuhal, he smoked in the company vehicle although it was not legal, and in the controls made in the hospital, no findings were found in the controls made in the hospital, and in his defence, he stated that it was a mistake to smoke; defending that he declared that it was a mistake; he demanded a decision to dismiss the lawsuit.
C) Summary of the Local Court Decision:
The court stated that the plaintiff worked at the defendant workplace between 02.05.2013-02.09.2014, his employment contract was terminated due to the fact that during an argument with another worker; the worker he had an argument with said that he was living a friendly life with another worker, the dispute is whether this behaviour of the plaintiff gives the employer the right of justified termination, Article 18 of the Labour Law.
Article 18 of the Labour Law can be used as a basis for valid termination if the reasons arising from the employee’s behaviour are not of a weight that gives the right to immediate termination in accordance with Article 25 of the same law, and that the behaviour of the plaintiff, which is based on justified termination, does not significantly disrupt the execution of the work at the workplace, but causes unrest among the employees, which can be used as a basis for valid termination, not justified termination, and therefore the plaintiff can receive severance and notice pay.
D) Appeal:
The judgement was appealed by the defendant’s counsel within due time.
E) Grounds:
1- According to the writings in the file, there is no inaccuracy in the evaluation of the evidence, the defendant’s appellate objections other than the scope of the following paragraph are not deemed appropriate.
2- Article 18 of the Labour Law No. 4857 authorises the employer to terminate the employment contract for reasons arising from the employee’s behaviour and competence. The purpose of the termination due to the employee’s behaviour is not to punish or sanction the employee’s previous behaviours contrary to the employment contract, but to avoid the risk of the employee continuing and repeating the breach of contractual obligations. In order for the employment contract to be terminated due to the employee’s behaviour, the employee must have a behaviour that violates the employment contract and breaches the contract.
If the employee has acted in breach of the contract through his/her negligent behaviour and the employment relationship has been adversely affected as a result, a valid termination arising from the employee’s behaviour is in question. On the other hand, since no responsibility can be imposed on the employee due to the employee’s behaviour that is not based on the fault and negligence of the employee, the valid reason for termination arising from the employee’s behaviour cannot be mentioned.
The reasons arising from the behaviour and competence of the employee are the reasons specified in Article 25 of the same Law, as well as the reasons that, although not of this nature, significantly adversely affect the performance of the work in the workplace. For the reasons arising from the behaviour or incompetence of the employee, in cases where the continuation of the employment relationship is important for the employer and cannot be reasonably expected, it will be necessary to accept that the termination is based on valid reasons.
Termination based on the behaviour of the employee requires, first and foremost, a breach of the employment contract by the employee. In this respect, it must first be determined which contractual obligation is concretely imposed on the employee, and then it must be determined precisely which behaviour of the employee violated the concrete contractual obligation. Undoubtedly, it should be examined in this context whether the breach of the employee’s employment contract is of such gravity as to give the employer the right to terminate the employment contract immediately. Then, it is necessary to determine whether the employee could have avoided the concrete breach of the obligation if he wished to do so. Employer’s business interests must be harmed due to the employee’s concrete breach of contract.
The scope of the employee’s obligations is determined in individual and collective labour agreements and legal regulations. The breaches of contract caused by the employee negligently (intentionally or negligently) gain importance in terms of termination of the contract. In order to talk about a valid reason for termination, the employee does not necessarily have to intentionally violate his/her contractual obligations. It is sufficient to breach the duty of care by negligent behaviour. On the other hand, the employee’s behaviour that is not based on fault does not, as a rule, entitle the employer to terminate the contract on the basis of the employee’s behaviour. The degree of fault will play a role in the predictive diagnoses of the negative effects that the employment relationship may present after the termination of the employment contract and in weighing and balancing the interests.
In determining whether the employee has breached the employment contract, not only the primary performance obligations, but also the ancillary performance obligations and ancillary obligations arising from the law or the rule of honesty should be taken into consideration. The duty of loyalty imposes an obligation on the parties to the contract not to harm the other party’s person, property and other legally protected assets in the performance of the obligations arising from the contractual relationship, and to avoid any behaviour outside the scope of the contractual relationship that may jeopardise the purpose pursued by the contract, especially to undermine the mutual trust.
Employer is obliged to prove that the employee has negligently breached the obligations arising from the employment contract.
The employee’s obligation to perform work is concretised by the instructions given by the employer within the scope of the right of management. The opposite of the employer’s right of management is the employee’s obligation to comply with the employer’s instructions. Based on the right of instruction, the employer regulates where, how and when the performance of the work outlined in the employment contract will be performed. Instructions regarding the start and end times of the daily working hours, how to apply the break breaks, the distribution of work in the workplace or the tools, equipment and techniques to be used are accepted among such instructions. The employer’s right of management also includes giving instructions regarding the maintenance of order in the workplace and the behaviour of the employee.
On the other hand, the employer’s right to give instructions shall not be applicable to the amount of wages and the scope of the working hours owed, which constitute the essential elements of the employment contract. The employer is not authorised to unilaterally increase the total working time or decrease it in a way to affect the wage. In the event that the employer gives instructions covering the essential elements of the employment contract and the balance between the performance and counter-performance in the employment contract is disturbed, the provisions regarding job security may be circumvented.
The employer’s right to give instructions can be narrowed or expanded by law, collective labour agreement and individual employment contract. In other words, the employer’s right to give instructions is limited to the provisions of the law, collective labour agreement and individual employment contract. In this respect, since the employer cannot give instructions contrary to the provisions of criminal and public law, the employee is not obliged to comply with such instructions. In addition, the employer cannot give instructions that violate the personal rights of the employee.
Likewise, in accordance with the prohibition of abuse of right regulated in Article 2 of the Civil Code, the employer cannot give instructions contrary to the rule of honesty. In this case, the employer cannot give instructions that will create inequality in favour of other workers but to the detriment of one or more workers, nor can he give instructions with the aim of causing pain and suffering to the worker. Accordingly, the employer is also obliged to comply with the equal treatment obligation when giving instructions.
The instructions given by the employer within the scope of the right of management must be complied with by the employee.
Failure of the employee to comply with the instructions gives the employer the right to justified or valid termination of the employment contract. Paragraph (h) of subparagraph II of Article 25 of the Labour Law accepts the insistence of the employee not to perform the duties that he/she is obliged to perform, even though he/she is reminded of them, as a justified reason for termination. On the other hand, as stated above, according to the reasoning of the Labour Law, the employee’s “incomplete, poor or inadequate performance of his/her work despite warnings” is a valid reason for termination.
Not every faulty production or service in an employment relationship gives the right to terminate the employment contract. In particular, the average production or service error that can be expected from an employee cannot be a reason for termination of the employment contract.
However, a faulty production or service above the margin of error, in other words, above the tolerance limit, which can be expected from an employee, may be important for the termination of the employment contract. It is often difficult to draw the line between unwillingness and inability to fulfil the performance of work. While the former is a reason for termination based on the employee’s behaviour within the meaning of Article 18 of the Labour Law, the latter is a reason for termination based on the employee’s incapacity.
However, in the event that the employee does not wish to fulfil the performance of his/her duties, giving a warning to the employee and threatening him/her that the employment contract will be terminated may have a positive effect. For this reason, in both cases, it should be obligatory to give notice to the employee. This is because, while the warning may have a positive effect against the employee who does not want to fulfil the performance of work at all or wants to fulfil it incompletely, it will not have any positive effect against the employee who has no or incomplete physical competence to perform the work.
In this way, it is possible to make a distinction between the reason for termination arising from the incompetence of the employee specified in Article 18 of the Labour Law and the inadequate performance of the work mentioned in the Preamble, which gives the right to terminate the employment contract due to the employee’s behaviour. Thus, the employer, who terminates the employment contract believing that there is no need for notice due to the existence of a reason for termination arising from the incompetence of the employee, is saved from the danger of facing the consequences of invalid termination (reinstatement) arising from the failure to give notice as a result of the determination of the existence of a reason for termination based on the employee’s behaviour.
Today, the obligation to obey ancillary obligations is derived from the rule of good faith. Accordingly, the performance of labour must be performed in a manner required by the rule of good faith.
The ground for termination arising from the employee’s behaviour requires the employee to be guilty of misconduct.
According to paragraph (d) of sub-paragraph II of Article 25 of the Labour Law, it is considered a just cause for termination of employment if the employee utters words or behaves in a manner that may damage the honour and reputation of the employer or his/her family, or if the employee makes unfounded denunciations and accusations against the employer or one of his/her family members, or if the employee taunts the employer or one of his/her family members. In such cases, the employee cannot rely on the freedom of expression of thought guaranteed by Articles 25 and 26 of the Constitution.
On the other hand, if the words uttered by the employee against the employer, which are not of this weight, are of a nature to disrupt the working order, they should be considered as a valid reason for termination. Unfavourable remarks directed not only against the employer, but also against the employer’s representative, which are not of such gravity to require justified termination, should be considered as a valid reason for termination.
Similarly, if the employee insults and swears at persons who are not the employer or members of the employer’s family, but who are close relatives of the employer or with whom the employer has a close relationship or who are partners of the employer in another business, and makes unfounded notifications and imputations to these persons, this will constitute a valid reason for the termination of the employment contract, especially in small businesses where the employer’s personality is important.
The employee’s taunting another employee of the employer is considered as a just cause for termination pursuant to Article 25/II, d. As long as it is not in the nature of teasing, engaging in continuous and unnecessary discussions with other workers, showing serious incompatibility with colleagues is a valid reason for termination (Decision of our Chamber dated 26.05.2008 and numbered 2007/37481 Main, 2008/12505 Decision).
If the employee utters harsh words, which will be evaluated within the scope of Article 25 of the Labour Law, as a result of the provocation of the employer or his/her representative, it should be considered as a valid reason for termination. In the case of criticism related to a certain area of expertise within constructive and objective measures, or criticism related to disorders or improprieties in the enterprise, valid termination cannot be mentioned.
In the concrete dispute; from the information and documents in the file, it is understood that the plaintiff said to his colleague Z.T., a female worker, “the supervisor’s stooge, you are living a friendly life, he protects and cares for you for him”, and in the complaint petitions given to the employer regarding this, it is understood that the plaintiff made rumours that Z.T. and T.Ö., who are married, were living a friendly life between them and this issue was reported to the management. This behaviour of the plaintiff, as per Article 25/II-d of the Law No. 4857, is teasing another employee at the workplace and gives the employer the rightful termination of the employment contract. While the severance and notice pay of the plaintiff, whose employment contract was rightfully terminated, should be rejected, its acceptance was erroneous and required a reversal.
F) CONCLUSION:
It was unanimously decided on 01.07.2019 that the appealed decision will be reversed for the reason explained, and the prepaid appeal fee will be returned to the relevant person upon request.
You can access our other article examples and petition examples by clicking here.