The Employee Calling His Supervisor An Asshole And A Liar Is Grounds For Termination For Just Cause
9th Civil Chamber 2020/1848 E. , 2020/7866 K.
“Case Law Text”
COURT :Labour Court
CASE TYPE : CLAIM
In the petition dated 03.06.2020 submitted by the plaintiff’s attorney, it was claimed that the reversal decision of our Chamber dated 13.02.2020 and numbered 2016/13686 E. and 2020/2140 K. was based on a material error, and it was requested to eliminate the decision and to approve the judgement.
As it is understood that the decision of our Chamber to make a decision of reversal by overlooking the fact that the decision was made without clarifying whether the termination authority was used within the six-working day forfeiture period stipulated in Article 26 of the Labour Law No. 4857 was based on a material error, it has been decided that the reversal decision of our Chamber be REMOVED.
After listening to the report prepared by the Examining Judge … for the case file, the file was examined, the necessity was discussed and considered.
JUDGEMENT OF THE COURT
Summary of the Claimant’s Request:
The plaintiff’s attorney claimed that the plaintiff worked as a butcher in the defendant’s workplace between 27.03.2008-13.06.2014, his last wage was 1.550,00 TL net, his employment contract was terminated for unfair reasons, and requested the collection of severance and notice indemnities and overtime receivables from the defendant.
Summary of Defendant’s Response:
The defendant’s attorney claimed that the negative behaviours of the plaintiff became continuous, that he insulted the foreman and the department supervisor by calling them “bastard” and walked on his supervisor on 26.05.2014, that the plaintiff accepted this fact, and that his employment contract was terminated for just cause and demanded the dismissal of the lawsuit.
Summary of the Court Decision:
The court, based on the evidence collected and the expert report, the plaintiff worked for the defendant company for 6 years, 2 months and 17 days between 27/03/2008 and 13/06/2014, his last dressed gross wage was 2.438,11 TL. It was decided to partially accept the lawsuit on the grounds that it could not be proved that the seniority, notice and overtime receivables calculated by the expert were paid, the employment contract was terminated after the plaintiff insulted a fellow worker by calling him “asshole”, but as a result of the word said, it means “louse cub” in Turkish language, therefore it is not a heavy word that requires termination, since it is a matter that can be resolved with a warning and warning, it is not appropriate to punish the termination with termination, the termination is unfair and requires compensation.
Appeal
The decision was appealed by the plaintiff’s attorney.
Grounds:
1-According to the writings in the file, 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 issue of whether the employment contract was terminated within the forfeiture period is a matter of dispute between the parties.
In the event that justifiable reasons for termination arise for the employee or the employer, the term of the other party to the employment contract to terminate the contract for just cause is not unlimited. In this respect, Article 26 of the 4857 Labour Law stipulates two separate periods of time, based on the date the employer learnt of the event and the date of the event. The termination of the employee or the employer who fails to terminate within these periods does not give rise to the consequences of a justified termination. These periods are set as six working days from the date of the other party’s knowledge of the event that caused the termination and one year from the date of the act.
While a similar regulation was included in Article 18 of the Labour Law No. 1475, in the Labour Law No. 4857, it is stipulated that the 1-year period will not be triggered if the employee has gained financial benefit in the incident. Therefore, if the employee has a material interest in the event that caused the justified termination, the employer has the possibility of justified termination, no matter how much time has passed since the event, provided that six working days are observed.
The six working day period starts to run from the day the employee or the employer learns about the event that caused the justified termination. The day of learning the event is not counted and the following working days are counted and the authorisation of justified termination ends at the end of the sixth day.
In case the employer is a legal entity, the six-working day period starts from the day the authority authorised to terminate the employer learns about the termination. An inspector’s investigation on this matter or the discussion of the incident by the disciplinary board does not start the period. The day the incident is referred to the person or board authorised for termination shall constitute the beginning of the six-working day period.
The one-year period starts on the day of the incident in any case.
Periods of six working days and one year stipulated in Article 26 of the Labour Law No. 4857 are of a forfeiting nature. In other words, the right of termination must be exercised within six working days from the date of learning and within one year from the occurrence of the event. The lapse of even one of the periods eliminates the possibility of justified termination.
Due to the nature of the forfeiture period, even if the parties do not assert it, the judge must take it into consideration ex officio.
The party who uses the right of termination without notice after the expiry of the periods specified in this article will be deemed to have unfairly broken the contract and will be liable for notice pay and severance pay if the conditions are met.
In the concrete dispute; it is fixed that the plaintiff called his supervisor Muharrem, with whom he worked at the defendant company, “liar” and “arsehole”, and his employment contract was terminated for this reason.
The termination made by the employer due to these words of one employee to another employee in the nature of taunting-insult is justified. It is also clear that the term “arsehole” is used for insulting purposes.
In the context of this determination, although the Court’s acceptance of the claims for severance and notice pay on the grounds that the definition of “arsehole” is not an insult based solely on its dictionary meaning is erroneous, it is first necessary to clarify whether the defendant employer’s termination authority was used within the 6-working day period stipulated by Article 26 of the Law No. 4857.
From the file content; it is seen that the incident on which the termination is based occurred on 26.05.2014, the defence of the plaintiff was taken on the same day and the plaintiff accepted the actions subject to termination, on the other hand, the termination notice was sent by the defendant employer on 13.06.2014 and his dismissal was also shown as 13.06.2014 in the records, and it is seen that the termination authority was not used within the 6-working-day right-reducing period stipulated by the Law.
In this case, the work to be done by the Court consists of investigating the date of learning of the authority authorised to terminate and clarifying whether the termination authority was used within the statutory period, and according to the result, if it is determined that it was used within the period, the severance and notice compensation should be rejected, otherwise, it should be accepted only on the grounds that the termination authority was not used within the term.
As a result; reaching a conclusion with an erroneous evaluation based on incomplete research required a reversal.
Conclusion
It was unanimously decided on 15.09.2020 that the appealed decision shall be reversed for the reasons written above, and the prepaid appeal fee shall be returned to the relevant party upon request.
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