The Employment Relationship Becoming Unbearable – Termination For Just Cause
Supreme Court of Appeals of the Republic of Turkey
9th Civil Chamber Case No.: 2017/27210
Decision No.: 2018/13713
Date of Decision: 25.06.2018
COURT: … REGIONAL COURT OF APPEAL 10th CIVIL CHAMBER
CASE TYPE: REINSTATEMENT
FIRST INSTANCE
COURT: … 6th LABOR COURT
CASE: The plaintiff requested a decision on the invalidity of the termination, reinstatement, and legal consequences.
The local court decided to dismiss the case.
The local court ruled to dismiss the case.
The plaintiff’s attorney filed an appeal against the first instance court’s dismissal decision.
The 10th Civil Chamber of the … Regional Court of Appeal accepted the plaintiff’s attorney’s appeal and
ruled for the plaintiff’s reinstatement.
… The decision of the 10th Civil Chamber of the Regional Court of Appeal was appealed by the defendant’s attorney within the prescribed time limit.
After hearing the report prepared by the Examining Judge for the case file,
the file was reviewed, and the necessary discussions and considerations were made:
SUPREME COURT DECISION
A) Summary of the Plaintiff’s Claim:
The plaintiff’s attorney stated that the plaintiff began working at the … …AVM branch of …İç ve Dış Ticaret A.Ş. on 27/06/2012,
and that as of November 2013, the company was transferred to Bimeks Bilgi İşlem ve Dış
Trade Inc., and that the defendant company took over the workplace under the condition that the rights of the previous employer’s employees would continue unchanged.
The defendant company adopted a policy of terminating employment contracts, particularly toward unionized workers, in a highly negative and exclusionary manner after the takeover.
The plaintiff was forced to resign in the days leading up to his dismissal, facing situations such as the closure of the payroll processing page, the closure of the cash register code, and the blocking of access to the system.
was terminated, the defendant company closed the payroll processing page, closed the cash register code, and blocked access to the system, among other measures. On November 15, 2014, the plaintiff was verbally terminated without any written notice, with the claim that he had disrupted workplace harmony and failed to perform assigned tasks despite verbal warnings, in a manner that was humiliating.
, and that the defendant company’s grounds for termination did not reflect the truth, but were merely a pretext. The plaintiff claims that his employment contract was terminated because he was a union member, and that he had not received any warnings or disciplinary actions since his date of employment,
and therefore requests that the invalidity of the termination be determined, that the plaintiff be reinstated, and that the defendant be ordered to pay the plaintiff the wages he is entitled to receive for the period from the date of termination until the date of reinstatement, along with interest at the rate of 10% per annum.
, and that the termination was invalid. The plaintiff requested that the court rule on the invalidity of the termination, order the plaintiff’s reinstatement, and grant the plaintiff’s request for reinstatement as specified in Article 21 of Law No. 4857,
regardless of the employer’s conditions for reinstatement or non-reinstatement, and order the defendant to pay the plaintiff union compensation in the amount of 12 months’ salary as specified in Article 25/5 of Law No. 6356,
as well as 4 months’ salary for the period of unemployment.
Article 25/5 of Law No. 6356, and the payment of four months’ salary for the period of unemployment
from the defendant.
B) Summary of the Defendant’s Response:
The defendant’s attorney stated that the plaintiff worked as a sales consultant at the Bimeks store from June 21, 2012, to November 14, 2014,
that the plaintiff’s claims in the lawsuit are unjustified and contrary to procedure,
and that the termination of the plaintiff’s employment contract was based on reasons entirely different from and justified by the union-related issues mentioned by the plaintiff.
reasons, that the plaintiff had developed a habit of behaving in a manner inconsistent with the defendant’s workplace rules and regulations, and contrary to store regulations,
and that the plaintiff had persistently refused to fulfill the responsibilities assigned to him,
that the termination had become inevitable from the defendant’s perspective, that the plaintiff’s
behavior toward customers was unacceptable, that the plaintiff
on October 22, 2014, the plaintiff engaged in an argument with a customer and was requested to provide a defense regarding this matter. When the customer
requested assistance from the plaintiff, the plaintiff attempted to assist the customer but engaged in an argument with the customer
and used offensive language. These incidents were documented through camera recordings.
It was determined that the plaintiff engaged in behavior that disrupted the workplace harmony in the store, and therefore,
The plaintiff argued that he was not even aware that the plaintiff was a union member
and requested that the case be dismissed.
C) Summary of the First Instance Court Decision:
The first instance court ruled that the plaintiff worked as a retail salesperson at the defendant’s workplace between June 21, 2012, and November 17, 2014
and that on July 31, 2016, the plaintiff was dismissed from work due to the termination of the employment contract under code 29, i.e., due to the employee’s
behavior contrary to the rules of morality and good faith, as stated by the employer.
The expert report dated April 21, 2015, regarding the CD solution in the file,
shows that the plaintiff had an argument with a customer and that they physically assaulted each other. A response was sent on March 23, 2016, to the memorandum written by the Tez Kop
union. On October 22, 2014,
the plaintiff’s written defense was taken due to the argument he had with the customer. In the termination notice dated November 15, 2014,
termination notice dated November 15, 2014, the plaintiff was informed that his repeated behavior and actions contrary to workplace rules and regulations,
his insistence on not performing the tasks assigned to him, and his behavior that disrupted the working environment in the store were evaluated, and his employment contract was terminated for just cause in accordance with Article 25 of Law No. 4857. The CD transcript in the file, the plaintiff’s written defense, and the
evaluated, and the employment contract was terminated for just cause in accordance with Article 25 of Law No. 4857. When the CD
transcript in the file, the plaintiff’s written defense, witness statements, and the entire file scope are considered together
, it was determined that the plaintiff’s employment contract was terminated for just cause in accordance with Articles 25/2-e-h of Law No. 4857 due to the plaintiff’s dispute and physical altercation with a customer and
his persistent refusal to perform the duties he was obligated to perform despite being reminded of them.
Therefore, it was decided to dismiss the case.
D) Appeal Application:
The plaintiff filed an appeal against the decision of the first-instance court.
E) Grounds for Appeal:
In the appeal, the plaintiff’s attorney argued that the court’s decision was contrary to procedure and law, that its reasoning
was not based on factual evidence, that the evidence was not discussed, and that no legal assessment was made,
that the defendant’s witnesses were biased in their statements as they were persons in a dependent relationship with the defendant company
, that the defendant, who requested a defense regarding situations such as disputes and fights with customers and conducted a disciplinary
investigation, did not request the plaintiff’s defense for any reason other than the situation recorded on camera,
did not initiate a disciplinary investigation against him, and that many of the issues requested and sought to be investigated in the
complaint were not investigated or evaluated
.
F) Summary of the Regional Court of Appeal Decision:
The Regional Court of Appeal stated in the termination notice dated November 15, 2014, that the plaintiff: “repeatedly exhibited behavior contrary to workplace rules and regulations,
refused to perform the tasks assigned to him,
and engaged in behavior that disrupted the work environment in the store
the employment contract was terminated for just cause in accordance with Article 25 of Law No. 4857,
after considering the written defense.” The plaintiff’s dialogues with customers on December 30, 2013, October 22, 2014, and November 12, 2014,
, the plaintiff’s defense was taken into account, and as evident from the defense request letter dated November 12, 2014,
was verbally warned after his defenses on December 30, 2013, and October 22, 2014,
and that after his defense on November 12, 2014, the plaintiff’s employment contract was terminated on November 15, 2014,
but the defendant employer could not prove that the plaintiff’s behavior, which was the basis for his defense, was valid or justified,
reasons, and that the defendant employer failed to prove this. Additionally, as seen in the camera recordings in the file and
reviewed by our Chamber, the customer personally attacked the plaintiff,
the defendant employer failed to fulfill its obligation to protect its employee, and the plaintiff’s
action was not cited as a reason for termination. Despite this, the court’s decision to evaluate this incident as a reason for termination
and ruled to dismiss the case, which was not appropriate. The plaintiff’s
appeal regarding these issues was accepted, and pursuant to Article 353/1-b, paragraph 2 of the Code of Civil Procedure, the first
instance court’s decision was overturned, and the plaintiff was reinstated to his position.
G) Appeal:
The defendant’s representative filed an appeal against the decision of the Regional Court of Appeal within the prescribed time limit.
H) Grounds:
Article 18 of Labor Law No. 4857 grants the employer the right to terminate the employment contract for reasons arising from the employee’s conduct and competence. The purpose of termination based on the employee’s conduct
is not to punish or sanction the employee for previous violations of the employment contract,
but to avoid the risk of the employee continuing to violate or repeat such violations.
For the employment contract to be terminated due to the employee’s conduct, For the employment contract to be terminated due to the employee’s conduct,
there must be evidence of conduct that violates the employment contract and breaches its terms.
If the employee’s negligent conduct constitutes a breach of the contract and has negatively impacted the employment relationship,
then termination based on the employee’s conduct is valid.
On the other hand, since the employee cannot be held liable for conduct contrary to the contract that is not based on fault or negligence,
there can be no valid grounds for termination based on the employee’s conduct.
Reasons arising from the employee’s conduct and competence
Reasons arising from the employee’s conduct and competence, in addition to those specified in Article 25 of the same law,
are reasons that significantly negatively affect the performance of work at the workplace,
even if they do not fall under the same category. In cases where the reasons stem from the employee’s conduct or incompetence,
if continuing the employment relationship is not reasonably expected from the employer’s perspective,
it must be accepted that the termination is based on valid reasons.
Termination based on the employee’s conduct first and foremost requires that the employment contract has been breached by the employee.
In this context, Therefore, it is first necessary to determine which specific contractual obligation was imposed on the employee,
and then to fully establish which behavior of the employee constitutes a breach of the specific contractual obligation.
It should also be examined whether the employee’s breach of the employment contract is of such gravity as to immediately
entitle the employer to terminate the contract. Subsequently, it must be determined
whether the employee could have avoided breaching the obligation in question if they had chosen to do so.
It is a prerequisite that the employer’s operational interests have been harmed as a result of the employee’s
concrete breach of the contract. If it is determined that the employee had the opportunity to avoid breaching their obligations,
it will be examined whether a warning was issued to the employee prior to termination, and if the employee repeated their behavior despite the warning,
whether the employment contract was terminated in accordance with Article 19 of the Labor Code after hearing the employee’s defense.
However, in cases where the employer cannot be expected to continue the employment contract due to serious breaches of obligations, However, in cases where the employer cannot be expected to continue the employment contract due to
serious breaches of duty, there is no need to issue a warning to the employee for their conduct.
In other words, if the nature and severity of the employee’s conduct that breaches the contract In other words, if the type and severity of the employee’s breach of contract
such that it is reasonable to expect the employer to continue the employment relationship on the condition that the employee
complies with the contract in the future, a warning should be necessary and mandatory; otherwise, the employer should be able to terminate the employment contract without issuing a warning. Accordingly, as a general rule, it should be accepted that there is no need to issue a prior warning to the employee
in cases specified in Article 25 of the Labor Code, which grants the employer the right to terminate the contract without notice.
The scope of the employee’s obligations is determined by individual and collective labor contracts and legal regulations.
The employee’s contractual obligations are determined by individual and collective labor contracts and legal regulations. Breaches of contract caused by the employee’s fault (intentionally or negligently)
are significant in terms of termination of the contract. For a valid reason for termination to exist,
it is not necessary for the employee to have intentionally breached their contractual obligations. It is sufficient for the employee to have breached their duty of care
through negligent behavior. On the other hand, the employee’s conduct not based on fault
generally does not give the employer the right to terminate the contract based on the employee’s conduct.
The degree of fault will play a role in the estimated diagnosis of the negative consequences that may arise in the employment relationship after the termination of the employment contract
and in the weighing and balancing of interests.
Determining whether the employee has breached the employment contract
In determining whether the employee has breached the employment contract, not only the primary obligations but also
the ancillary obligations arising from the law or the principle of good faith, as well as ancillary obligations, must be taken into account. The duty of loyalty imposes on the parties to the contract the obligation not to cause harm to the other party’s person, property, or other legally protected assets in the performance of the obligations arising from the contractual relationship,
and to refrain from any conduct that could jeopardize the purpose of the contract beyond the scope of the contractual relationship,
particularly conduct that could undermine the mutual trust between the parties.
The employer is required to prove that the employee has breached their obligations arising from the employment contract with fault.
The employer is obligated to prove that the employee has breached their obligations arising from the employment contract through fault.
The employer is obligated to prove that the employee has breached their obligations arising from the employment contract through fault.
The employee’s obligation to perform work is specified by the instructions given by the employer within the scope of their management rights.
The opposite of the employer’s management rights is the employee’s obligation to comply with the employer’s instructions. The employer,
based on their right to give instructions, regulates where, how, and when the work specified in the employment contract is to be performed.
The start and end times of the daily working hours, how breaks are to be taken, how work is to be distributed in the workplace, and what tools, equipment, and Instructions regarding the start and end times of the daily working hours, how breaks
are to be taken, the distribution of work at the workplace, or the tools, equipment, and
techniques to be used are considered to fall under this category of instructions. The employer’s management
right also includes the authority to issue instructions regarding the maintenance of order at the workplace and the employee’s conduct.
However, the employer’s right to issue instructions does not apply to the essential elements of the employment contract, such as the amount of wages and
the scope of the agreed working hours. The employer does not have the authority to unilaterally increase the total
working hours or reduce them in a manner that affects wages. If the employer
issues instructions that encompass the essential elements of the employment contract, this may result in the circumvention of provisions related to job security if the balance between the performance and counter-performance in the employment contract
is disrupted. The employer’s right to issue instructions may be restricted or expanded by law, collective bargaining agreements, and individual employment contracts
. From another perspective, the employer’s right to issue instructions
is limited by the provisions of the law, collective labor agreements, and individual employment contracts. Therefore,
the employer cannot issue instructions that violate criminal or public law provisions, and the employee is not obligated to comply with such
instructions. Additionally, the employer cannot issue instructions that violate the employee’s personal rights. Furthermore, pursuant to the prohibition on the abuse of rights set forth in Article 2 of the Civil Code,
the employer may not issue instructions that violate the principle of good faith. Thus, the employer may not issue instructions that create inequality benefiting other employees
but detrimental to one or more employees, nor may the employer issue instructions with the intent to cause hardship or distress to the employee.
Accordingly, the employer is also obligated to comply with the duty of equal treatment when issuing instructions.
For the employment contract to be validly terminated due to the employee’s conduct, the employee must have committed a breach of duty after receiving a warning. For an employment contract to be validly terminated due to the employee’s conduct, the employee must
engage in conduct that constitutes a breach of duty again after receiving a warning.
If no new breach of duty occurs after the warning is issued, the employment contract cannot be validly terminated
solely based on the conduct that was the subject of the warning. Because by issuing the warning,
the employer has implicitly waived the right to terminate the employment contract due to the behavior in question.
Termination due to behavior is only necessary when there is no lighter remedy available
than terminating the contract. Another means of applying the principle of proportionality, aside from a warning, is the transfer of the workplace.
The transfer of the workplace is a measure that is considered a less severe remedy than termination.
However, the application of this measure is subject to the condition that it is feasible for the employer and reasonably expected of them.
If the employee cannot be transferred to another workplace, If there is no possibility of assigning the employee to another workplace,
then, in accordance with the principle of proportionality and the ultima ratio principle, termination for cause under Article 22 of the Labor Code
should be considered.
The employee is obligated to comply with the instructions given by the employer within the scope of their management authority. The employee’s failure to comply with instructions
grants the employer the right to terminate the employment contract for cause or for valid reasons, depending on the circumstances. Article 25(II)(h) of the Labor Code
recognizes the employee’s persistent refusal to perform the duties assigned to them, despite being reminded,
as a valid reason for termination. However,
as stated above, according to the rationale of the Labor Code, the employee’s “failure to perform their duties adequately, poorly, or insufficiently despite warnings” constitutes a valid reason for termination (Our Chamber’s
decision dated March 17, 2008, Case No. 2007/27680, Decision No. 2008/5302).
In the present case, the plaintiff’s employment contract was terminated on November 15, 2014, as the defendant
repeatedly exhibited behavior and conduct contrary to workplace rules and order, as observed by management,
refused to perform the duties assigned to him,
and engaging in behavior that disrupted the workplace harmony within the store, the defendant’s
employment contract was terminated as of November 14, 2014, pursuant to Article 25 of the Labor Law No. 4857,
based on the just cause arising from the employee’s conduct that violated the principles of morality and good faith.”
The employment contract was terminated on this basis.
On December 30, 2013, the defendant was accused of giving a rude response to a customer and leaving them alone,
and in the minutes taken on October 22, 2014, it was stated that the plaintiff had again argued with a customer,
that according to the customer’s statements, the plaintiff had physically assaulted and insulted the customer, that the plaintiff stated in his defense that he had performed his duties properly and did not accept the allegations, and that the court had discussed
On December 30, 2013, the plaintiff’s defense was heard on the grounds that he had given a rude response to a customer and left him alone.
On October 22, 2014, a record was made stating that the plaintiff had again gotten into an argument with a customer,
that according to the customer’s statements, the plaintiff had physically assaulted and insulted the customer, that the plaintiff had stated in his defense that he had performed his duties properly and did not accept the accusations,
and that the court had examined the CD recordings of the argument
showed that the plaintiff had argued with a customer, and that the plaintiff and the customer had approached each other while arguing,
the plaintiff had pushed the customer, who was holding his neck, with his hand, and the store staff had separated the fight. The defendant’s witnesses who were heard also
stated that the contract was terminated after the plaintiff’s argument with the customer, which escalated to insults, and that there had been issues with the plaintiff and his colleagues
with his coworkers, and for these reasons, a store change was also made.
The plaintiff’s actions caused negativity in the workplace, and it is understood that the employer could no longer be expected to continue working with the plaintiff.
Therefore, the termination of the plaintiff’s employment contract
is based on valid grounds, and the court’s decision to dismiss the case instead of accepting it
is erroneous.
The Regional Court of Appeal’s appealed decision should be overturned and annulled, and our Chamber
has decided to rule as follows in accordance with Article 20/3 of the Labor Code No. 4857.
DECISION: Based on the above reasons;
1. The Regional Court of Appeal’s decision is REVERSED AND SET ASIDE,
2. The case is DISMISSED,
3. The remaining 9.70 TL of the 35.90 TL decision-judgment fee, after deducting the 25.20 TL paid in advance,
from the plaintiff and recorded as revenue in the treasury,
4. The litigation expenses incurred by the plaintiff are left as they are, and the litigation expenses of 350.00 TL incurred by the defendant
are collected from the plaintiff and paid to the defendant,
5. The attorney’s fee of 2,180.00 TL, determined according to the tariff in effect on the date of the decision, shall be collected from the plaintiff
and paid to the defendant.
6. Unused advances shall be refunded to the relevant party upon request.
7. The advance appeal fee shall be refunded to the defendant upon request, and the case file shall be sent to the First Instance
Court, and a copy of the decision to the Regional Court of Appeal,
The decision was made unanimously on June 25, 2018.