Substantial Change In Working Conditions – Supreme Court Decision On Whether The Employer Objectively Exercised Their Management Rights
Summary:
The fact that the plaintiff accepted this provision in the employment contract does not absolutely grant the employer the right to change the plaintiff’s workplace; therefore, this authority must be exercised objectively. In our case, the employer must prove that the proposed wage change, which was not accepted by the plaintiff, is based on a valid reason within the scope of the principles explained above. The file shows that the employer has employees working both on a fixed salary and on a fixed salary + piecework basis at its workplace in Çorlu, that the employer made a written offer of a fixed salary + piecework to the plaintiff, and that when this was not accepted by the plaintiff, the plaintiff was assigned to the workplace in Istanbul Bayrampaşa, where a fixed wage system was in place. However, it is clear from the file that the plaintiff did not go to the workplace and was absent from work. The employment contract signed between the parties stipulated that the plaintiff agreed to work at different workplaces for the employer. Furthermore, the employer’s justification for this change was that the different wage practices at the same workplace disrupted the working peace at the workplace. When the plaintiff did not accept the new wage practice, the employer continued to apply the fixed wage practice previously applied to the plaintiff at the Bayrampaşa , it must be accepted that the employer did not arbitrarily exercise its management right, that there was no substantial change in the plaintiff’s working conditions, and therefore that this wage change was based on valid reasons. Thus, it is understood that the defendant has proven that the transfer was based on a valid reason and that the plaintiff’s failure to report to the new workplace and his absence from work have been confirmed by the minutes taken, and that the employer has the right to terminate the employment contract in accordance with Article 25/2-g of Law No. 4857. For the reasons explained above, the plaintiff’s claims for seniority and notice compensation should have been rejected, and their acceptance as a result of an erroneous assessment is incorrect and requires reversal.
T.C.
Court of Cassation
22nd Civil Chamber
Case No: 2012/29764
Decision No: 2013/28345
Date: 6.12.2013
CASE: The plaintiff requested a decision ordering the payment of seniority, notice compensation, overtime, wage claims, and annual leave wages.
The court partially ruled on the request.
As the defendant’s attorney appealed within the ruling period, the case file was reviewed after hearing the report prepared by the Review Judge, and the necessary discussions and deliberations were made:
The plaintiff’s attorney stated that the employer wanted to reduce wages to the minimum wage, threatened to assign those who did not accept this to the factory in Istanbul, and then terminated the employment contract by not hiring them on November 3, 2011, and requested the collection of severance pay, notice pay, and certain labor claims from the defendant.
The defendant’s attorney stated that in some units of the engraving card department where the plaintiff worked, fixed wages were paid, while in other units, wages were paid per piece produced. Under this system, the minimum wage was earned up to a certain quota, and after that quota, wages were paid per piece. The employer decided on November 1, 2011, to switch entirely to a piece-rate-plus-bonus system in the smart card production department. The plaintiff notified the employer in writing that he did not accept this change. This situation led to different wage practices among employees working in the same place and affected workplace harmony. It was impossible for the plaintiff to work in the smart card department. Therefore, the plaintiff was assigned to the Bayrampaşa smart card production department, where a fixed wage system was in place. However, the plaintiff did not accept this and subsequently failed to report to work at the new workplace, resulting in absenteeism. The defendant argued that the case should be dismissed.
The court ruled that although the plaintiff had agreed in advance in the employment contract to work in the same or another job at other workplaces of the employer within the country that were existing or would become operational, it could not be said that the employer had exercised its right arising from the employment contract and management authority objectively and in good faith. The court ruled that the plaintiff’s transfer from the workplace in Çorlu to the workplace in Bayrampaşa, even with the same personal rights, would create a substantial change in working conditions, and that it could not be expected that the plaintiff would accept this, and therefore decided to award seniority and notice compensation as well as other labor claims.
1-The dispute between the parties concerns whether there was a substantial change in the plaintiff’s working conditions and whether the defendant workplace exercised its management right objectively in this regard.
One of the most controversial areas of labor law is the determination of working conditions and the application of these conditions, the making of changes, and ultimately the fine line between changes not subject to the employee’s acceptance and the employer’s management right.
All rights and obligations arising from the employment relationship and applicable to the performance of work should be considered as “working conditions.” According to Article 22 of Labor Law No. 4857, “the employer may only make a substantial change in the working conditions established by the employment contract or by sources such as personnel regulations and similar sources that are annexed to the employment contract or by workplace practices by notifying the employee in writing. Changes not made in accordance with this form and not accepted in writing by the employee within six working days shall not be binding on the employee. If the employee does not accept the proposed change within this period, the employer may terminate the employment contract by explaining in writing that the change is based on a valid reason or that there is another valid reason for termination and by complying with the notification period. In this case, the employee may file a lawsuit in accordance with the provisions of Articles 17 to 21.” This regulation forms the normative basis for changes in working conditions.
The most important working conditions are the employee’s obligation to perform work and the employer’s obligation to pay wages in return, which are essential elements of the employment contract. In addition, where and when the work is to be performed, working hours at the workplace, annual leave periods, wage supplements, breaks, social benefits such as marriage, maternity, education, food, disability, and death benefits are also included in the working conditions. Providing the employee with private health insurance or enrolling them in an individual pension system, provided that the employer pays the premiums, is also included in the concept of working conditions.
If the employment contract contains provisions allowing for changes to the working conditions when necessary, the employer is said to have extended management rights. In this case, the employer has continuously acquired the right to make changes to the employee’s working conditions, provided that they do not abuse their management rights and comply with the limits set out in the contract. For example, contract provisions stating that the employee may be assigned to other workplaces belonging to the employer when necessary reserve the employer’s right to make changes in this regard. This right must be exercised objectively. Enforcing a contractual provision to terminate the employee’s employment contract constitutes an abuse of the employer’s management right.
Changes that fall within the scope of the employer’s management right or are based on valid reasons cannot be considered substantial changes in working conditions.
A proposed change does not bind the employee unless it is accepted in writing by the employee within six working days. After this period has passed, the employee’s acceptance of the proposed change constitutes a new offer made by the employee to the employer. The employer may only terminate the employment contract after the six working days have passed. The employer’s termination of the employment contract upon the employee’s acceptance after six working days has passed constitutes an implied rejection of the new offer made to the employer.
The validity of the reason for termination due to change must be examined in two stages. First, there must be a valid reason in the content of the employment contract that necessitates the change. Therefore, the valid reasons required for termination under Article 18 of Law No. 4857 must also be present in the case of termination due to change. In other words, in order to proceed with termination due to change, there must be a valid reason arising from the employee’s competence, conduct, or business requirements. The scrutiny of the stated valid reasons must be carried out in the same manner here. The weight and measure of the scrutiny do not differ. If the scrutiny does not establish the existence of a valid reason within the meaning of the aforementioned Article 18, the termination due to modification must be deemed invalid without proceeding to the second stage.
If a valid reason requiring the amendment of the employment contract is determined to exist, the second stage involves examining whether the contract amendment actually proposed complies with the law, the collective bargaining agreement, and the principle of proportionality, and whether it is reasonable to expect the employee to accept this proposal, or in other words, whether the employee is obliged to accept the proposed amendment. In other words, the second stage involves reviewing the proposed change. In this context, a proportionality review must be conducted based on the specific characteristics of the case. Termination due to change may only be considered if it is necessary as an appropriate and less severe remedy for changing working conditions and is proportionate to the intended purpose (ultima ratio). There must be no other organizational, technical, or economic measure available that would not require changing the working conditions or that would require proposing lighter working conditions and would still achieve the same purpose. The employer must also, if possible, make a more reasonable offer regarding the amendment of the contract. If the proposed change violates the principle of equal treatment under labor law, the employee is not obliged to accept it, and the termination due to the change is deemed invalid.
According to these explanations, in the specific case, the defendant employer stated that the workplace in Çorlu had switched entirely to a minimum wage + piecework wage system, that different wage systems disrupted workplace harmony, and that the plaintiff was therefore asked in writing on November 1, 2011, whether he accepted this wage change decision. The plaintiff stated that he did not accept it, and as a result, the plaintiff was assigned to the workplace in Istanbul Bayrampaşa, where a fixed wage system was in place. However, the plaintiff did not start working at this workplace and was absent from work between November 14-16, 2011. Therefore, the employment contract was terminated without compensation for just cause. According to the employment contract signed between the parties, the plaintiff agreed to work at different workplaces of the employer. The fact that the plaintiff accepted this provision in the employment contract does not absolutely grant the employer the right to change the plaintiff’s workplace; therefore, this authority must be exercised objectively. In our case, the employer must prove that the offer of a change in salary, which was not accepted by the plaintiff, was based on a valid reason within the scope of the principles explained above. The file shows that the employer had employees working both on a fixed salary and on a fixed salary + piecework basis at its workplace in Çorlu, that the employer made a written offer to the plaintiff for a fixed salary + piecework, Upon the plaintiff’s refusal to accept this, the plaintiff was assigned to the workplace in Istanbul Bayrampaşa, where a fixed wage system was in place. However, it is evident from the file that the plaintiff failed to report to work and was absent. The employment contract signed between the parties stipulates that the plaintiff agrees to work at different workplaces for the employer. Furthermore, the employer’s justification for this change is that the different wage practices at the same workplace disrupt the working peace at the workplace. The plaintiff did not accept the new wage practice, and as a result, the fixed wage practice previously applied to him continued at the workplace in Bayrampaşa , it must be accepted that the employer did not arbitrarily exercise its management right, that there was no substantial change in the plaintiff’s working conditions, and therefore that this wage change was based on valid reasons. Given this situation, it is understood that the defendant has proven that the change of location was based on a valid reason and that the plaintiff’s failure to report to the new workplace and his absence from work have been confirmed by the minutes taken. Therefore, the employer has the right to terminate the employment contract in accordance with Article 25/2-g of Law No. 4857. For the reasons explained above, the plaintiff’s claims for seniority and notice compensation should have been rejected, but their acceptance as a result of an erroneous assessment is incorrect and requires reversal.
2-In the expert report relied upon by the court, the calculation was made without taking into account the November 2011 payroll, which was unsigned and for which payment could not be proven, on the grounds that it was not taken into account. According to the bank statement in the file, the amount stated on the November 2011 payroll was deposited into the plaintiff’s account. Therefore, the decision made without considering this payroll is erroneous, and the court’s decision must be overturned on this basis as well.
CONCLUSION: The appealed decision is REVERSED for the reasons stated above, and the advance appeal fee shall be refunded to the relevant party upon request. The decision was made unanimously on December 6, 2013.