Whether The Employer’s Termination Is Justified If The Employee Frequently Takes Sick Leave
T.C.
COURT OF CASSATION
9th CIVIL CHAMBER
E. 2016/29524
K. 2017/12122
T. 6.7.2017
The plaintiff requested a ruling on the invalidity of the termination, reinstatement to work, and legal consequences.
The local court ruled in favor of the plaintiff.
The case was appealed by the defendant’s attorney within the ruling period. After hearing the report prepared by the Review Judge for the case file, the file was examined, and the necessary discussions and deliberations were made:
DECISION:
A-) Summary of the Plaintiff’s Claim:
The plaintiff’s attorney stated that the plaintiff last worked as an Editor at the defendant’s workplace between 09/05/2011 and 31/08/2015, and that the defendant employer’s termination statement stated that the client frequently took sick leave, that the defendant believed his various illnesses were caused by work stress, and that the conditions of the media company where he worked
media sector where the company was located would not change, it is alleged that the plaintiff’s situation affected the normal operation of the workplace, caused disruption and negativity in the workplace, and prevented the continuation of the employment relationship.
and that the termination of the employment contract by the employer was not based on a valid reason.
The client took almost no sick leave during the first three years of employment and took sick leave for only one or two days a year, but in the last year of employment, he had to take sick leave more frequently due to stress-related illnesses.
The sick leave reports related to these illnesses did not exceed a total of 10-12 days in one year, and even on the days when the client was on sick leave, he continued to work from home and worked almost 7 days a week. did not exceed a total of 10-12 days in a year, and that even on the days when the client was on sick leave, he continued to work from home, working almost 7 days a week, and that the plaintiff did not even use his annual leave, and that it was not possible for the client’s illness and taking leave (such as shingles and diabetes) to cause disruptions and negativity in the workplace that the client remained in constant contact with his team members while working for the employer, and even on sick days, he provided guidance and information to his colleagues from home. The plaintiff employee
argued that the employment contract was terminated without valid cause, requesting a ruling on the invalidity of the termination and the reinstatement of the plaintiff to his job.
B-) Summary of the Defendant’s Response:
The defendant employer’s representative stated that the plaintiff is the owner of Haber Türk Television and that the plaintiff also works as an Editor in the Culture and Arts Department of Haber Türk
Television’s Culture and Arts Unit as an Editor, that the plaintiff’s defense was requested and prior to the termination process, he took 20 sick leaves totaling 40 days, and moreover, the plaintiff
took leave many times for reasons such as doctor’s appointments, traffic jams, etc., in addition to the days he was on sick leave
and reported excuses, failing to come to work for full or half days. The plaintiff, in the last 6 months before his employment contract was terminated, sent SMS messages to Manager … stating that he would be late due to migraine, that he would not be able to make it to the meeting due to traffic, that he was stuck on the road, or that he was going to a doctor’s appointment.
The plaintiff consistently failed to attend the daily news meeting held between 9:25 and 10: 15, citing illness, medical appointments, traffic jams, etc. The plaintiff’s frequent requests for sick leave and excuses caused problems at work. Finally, he did not assign anyone to attend the meeting on his behalf, and his statements about the difficulties he experienced in his work indicated that work stress had reached the point of making him ill. His approach to his work had been evaluated for a long time, and he caused disruptions and negativity in the workplace and and his statements about the difficulties he experienced in his work, indicating that work stress had reached the point of making him ill, that his approach to work had been evaluated for a long time, that he caused disruptions and negative consequences at the workplace, and that he was an obstacle to the continuation of the service relationship. Therefore, the employment contract was terminated with all legal rights paid, and the claim should be dismissed.
C-) Summary of the Local Court Decision:
Following the trial conducted by the Court, it was determined that the plaintiff, who was not an employer representative,
began working at the defendant’s workplace on 09/05/2011 under an indefinite employment contract, and was last working as an Editor
when the defendant employer terminated the employment contract on 31/08/2015 in accordance with Articles 17 and 18 of the Labor Law No. 4857.
Articles 17 and 18 of the Labor Law No. 4857, that the plaintiff, who filed this lawsuit within the one-month period of limitation,
had more than six months of seniority as of the date of termination, and that the workplace employed more than 30 workers,
that the plaintiff was covered by job security and had a legal interest in filing the lawsuit.
As a result of all these findings, As a result of all these determinations, upon examination of all the records pertaining to the plaintiff employee submitted to the file by the defendant, who bears the burden of proof; it was determined that the workplace rules required by the grounds stated in the termination notice, such as the plaintiff’s job description, productivity, the employer’s corporate principles, and compliance were objectively and concretely established in advance, along with witness statements, it was determined that the plaintiff’s frequent requests for sick leave and excuses caused negative consequences in the workplace. Finally, the plaintiff’s failure to assign someone to attend a meeting on his behalf and his statements regarding the difficulties he experienced in his work, indicating that work stress had to the point of illness, and that his long-standing approach to his work caused disruptions and negativity in the workplace and prevented the continuation of the employment relationship, thereby justifying termination. However, there is no dispute between the parties that the plaintiff was on sick leave on the dates indicated, and the defendant employer has not fully and concretely specified which negligent behavior of the plaintiff employee
breached the contract and consequently negatively affected the employment relationship, without specifying the material facts on which it is based, cannot be clearly established. On the contrary, since the employee cannot be held liable for conduct that breaches the contract but is not based on fault or negligence,
cannot be mentioned as a valid reason for termination. The plaintiff’s duties, working conditions, and the actions attributed to the plaintiff were not followed by any warning or notice, and the direct termination of the employment contract would constitute a violation of the principle of termination as a last resort. Therefore, the case was
accepted.
D-) Appeal:
The defendant’s representative appealed the decision.
E-) Reasoning:
Article 20/II.c.1 of Labor Law No. 4857 clearly states that the burden of proof that the termination is based on valid reasons
lies with the defendant employer.
In fulfilling the burden of proof, the employer must first prove that the formal conditions for termination have been met.
Accordingly, the termination must be in writing, the employer must document that the employee was given the opportunity to defend themselves in certain circumstances, and the written termination must clearly and specifically state the reasons for termination.
Once it is established that the employer has fulfilled the formal requirements, the next step is to prove that the reasons for termination are valid (or justified). Once it is understood that the employer has fulfilled the formal requirements, the stage of proving that the reasons for termination are valid (or justified) in terms of content will be reached.
Article 18 of the Labor Law No. 4857 grants the employer the authority to terminate the employment contract for reasons arising from the employee’s conduct and competence.
In termination arising from the employee’s conduct, the aim pursued is not to punish or penalize the employee for his/her previous conduct contrary to the employment contract; rather, it is to prevent the continuation of such conduct or to prevent similar conduct in the future. The purpose of termination based on the employee’s conduct
is not to punish or penalize the employee for previous conduct contrary to the employment contract, but to prevent the likelihood of the employee continuing to breach their contractual obligations or repeating such conduct. For the employment contract to be terminated due to the employee’s conduct, there must be conduct by the employee that is contrary to the employment contract and breaches the contract. If the employee’s culpable conduct is contrary to the contract and, as a result, the employment relationship has been adversely affected, then termination based on the employee’s conduct is valid. Conversely, 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 arising from the employee’s conduct.
Reasons arising from the employee’s conduct and competence
The reasons arising from the employee’s conduct and competence are, in addition to the reasons specified in Article 25 of the same Law,
reasons that significantly negatively affect the performance of work at the workplace, although they are not of this nature. In cases where the reasons stem from the employee’s conduct or incompetence,
if continuing the employment relationship cannot be reasonably expected from the employer’s perspective, it must be accepted that the termination is based on valid reasons.
The employer, who bears the burden of proof, must also prove that the employee’s conduct or incompetence caused negative consequences in the workplace and that the employment relationship became intolerable.
On the other hand, the preamble to the Labor Law lists examples of circumstances that would grant the employer a valid right of termination due to the employee’s incompetence, one of which is frequent illness and sick leave.
In the event of frequent sick leave, the employer will not be able to benefit from the employee’s work performance, even intermittently. It is clear that the frequent absences of an employee who is frequently ill and takes sick leave will cause negative consequences in the workplace. The fact that frequent illness is listed as an example of a reason arising from incompetence in the explanatory memorandum of the Labor Law is based on the acceptance that it causes negative consequences in the workplace.
Pursuant to Article 18/3.f of the Labor Law No. 4857, the employer cannot terminate the employee’s employment contract within the six-week waiting period in addition to the notice period pursuant to Article 25/I.b of the same law. However, the employee’s
frequent sick leave, even if intermittent, does not fall within this scope. If the employee frequently takes sick leave, even if the total duration of sick leave falls within the waiting period, the employee’s employment contract may be terminated with notice or for a fixed term if the frequent sick leave causes negative consequences at the workplace.
In this case, the termination is based on valid grounds.
According to the file contents, the plaintiff took sick leave for a total of 39 days in 2015 (9 days), 2014 (5 days), 2013 (3 days), and 2012 (2 days). Although other years are not considered, it is understood that the plaintiff frequently repeated this in 2015,
and this situation is also accepted by the court. There are minutes stating that the plaintiff was frequently late for meetings or did not attend, stating that he was going to the doctor, as well as minutes stating that he did not attend and did not give notice. In his most recent defense, the plaintiff stated that he had problems with his supervisor, that his mental health had deteriorated, and that he took sick leave due to his illness.
Based on these concrete factual and legal circumstances, it is understood that, regardless of whether the plaintiff obtained a medical report or not, he arrived late to meetings or did not attend them, had problems with his supervisors at work, and that his frequent obtaining of medical reports and failure to attend meetings
caused negative consequences at work. For an employee whose behavior and performance cause negative consequences at the workplace and make the continuation of the employment relationship unbearable, the principle that termination is a last resort cannot be invoked.
For these reasons, since the termination is based on valid grounds, it is erroneous to accept the case with a written justification instead of dismissing it.
Pursuant to Article 20/3 of the Labor Law No. 4857, our Chamber has decided as follows.
CONCLUSION: Based on the above reasons;
1. The court’s decision is REVERSED AND SET ASIDE,
2. The case is DISMISSED,
3. Since the fee was paid in advance, there is no need to collect it again,
4. The litigation costs incurred by the plaintiff are to be borne by the plaintiff,
5. The attorney’s fee of 1,980.00 TL, determined according to the tariff in force on the date of the decision, shall be collected from the plaintiff and paid to the defendant,
6. The advance appeal fee shall be refunded to the defendant upon request.
This decision was made unanimously on 06.07.2017.