The Employment Contract Of The Employee Who Played Okey In The Coffee House During The Break Period Cannot Be Terminated Validly
9th Civil Chamber
Principal Number: 2015/22089
Decision Number: 2015/29606
“Case Law Text”
COURT :LABOR COURT
THE CASE : The plaintiff requested a decision on the invalidity of the termination and reinstatement.
Local court decided to dismiss the lawsuit.
The judgment was appealed by the plaintiff’s lawyer within the period of time, and the file was examined after the report prepared by the Examining Judge for the case file was listened, and the file was examined, and the necessity was discussed and considered:
JUDGMENT OF THE COURT
A) Summary of the Claimant’s Request:
The plaintiff’s attorney stated that the plaintiff started to work at the defendant company’s workplace in Dudullu on 03.12.2010, that the plaintiff constantly asked the employer to compensate him for his overtime work due to the non-payment of overtime wages, that the employer verbally terminated the plaintiff’s employment contract in order to intimidate other workers, that the workplace offers …. There is no possibility to eat at the workplace, so the plaintiff and the employees went out for a meal break, when they came to the workplace, the workplace manager was asked for his defense on the grounds that he left the workplace without permission, the plaintiff has been working 2 hours overtime every day since the day he started work, he has not disrupted his work and has not been absent, and requested a decision on the invalidity of the termination.
B) Summary of the Defendant’s Response:
Defendant’s attorney; the plaintiff’s employment contract was terminated for justified reasons, the plaintiff was employed at …. as a fresh sales clerk within the defendant employer, ….. should also be included in the lawsuit, the plaintiff’s employment contract was terminated according to Article 25/2-e of the Labor Law No. 4857, the plaintiff left the workplace during working hours without notice and permission and played games with his friends in the coffee shop, the plaintiff was terminated both verbally and in writing, and requested a decision to dismiss the lawsuit.
C) Summary of the Local Court Decision:
The court decided to accept the lawsuit on the grounds that there was insufficient evidence that the plaintiff, as a distribution employee, did not complete the visits they were supposed to make during the day but reported them as if they had completed them, that the plaintiff’s working hours were flexible and that he arranged his own rest time, but that being caught by the employer playing okey in the coffee house was a negative behavior for the employer, but that this behavior was not severe enough to require the termination of the employment contract for just cause, and that the termination carried out by the employer was valid.
D) Appeal:
The decision was appealed by the plaintiff’s counsel.
E) Justification:
Article 20/II.c.1 of the Labor Law No. 4857 clearly places the burden of proof on the defendant employer to prove that the termination was based on valid reasons.
While fulfilling the burden of proof, the employer shall first prove that the termination complies with the formal conditions. Accordingly, the employer must have made the termination in writing, must document that it has asked for the employee’s defense in certain cases, and must have clearly and concretely shown the reasons for termination in the written termination. Once it is understood that the employer has fulfilled the formal conditions, the stage of proving that the reasons for termination are valid (or justified) in terms of content will begin.
Article 18 of the Labor Law No. 4857 authorizes the employer to terminate the employment contract for reasons arising from the employee’s behavior and competence. The purpose of the termination based on the employee’s behavior is not to punish or sanction the employee’s behaviors contrary to the employment contract, but to avoid the possibility that the employee will continue to violate the contractual obligations and repeat them. In order for the employment contract to be terminated due to the employee’s behavior, the employee must have a behavior that violates the employment contract and breaches the contract. If the employee has acted in breach of the contract through his/her misconduct and the employment relationship has been adversely affected as a result, a valid termination arising from the employee’s behavior is in question. On the other hand, since no responsibility can be imposed on the employee due to the employee’s behavior contrary to the contract, which is not based on the fault and negligence of the employee, the valid reason for termination arising from the employee’s behavior cannot be mentioned.
The reasons arising from the employee’s behavior and competence 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 work in the workplace. In cases where the reasons arising from the employee’s behavior or incompetence are such that the continuation of the employment relationship is significant and cannot be reasonably expected by the employer, it will be necessary to accept that the termination is based on valid reasons.
The employer, who has the burden of proof, must also prove that the behavior or incompetence of the plaintiff in the valid and justified reason has caused negativity in the workplace and that the employment relationship has become unbearable.
According to the file content, the plaintiff’s employment contract was terminated pursuant to Article 25/II-e of the Labor Law No. 4857. Although the defendant claimed that the plaintiff did not complete the visit he was supposed to make on 07.09.2012 but reported it as if he had completed it, this issue has not been proven with concrete and convincing evidence, as accepted in the reasoning of the court decision. The defendant also states that the plaintiff was caught playing okey in the coffee house on 10.09.2012 and therefore his employment contract was terminated. According to the witness statements, it was determined that the plaintiff was in the coffeehouse between 12:00-13:00, and it was declared that the employees working in the distribution business, such as the plaintiff, determine the hours of the daily break periods themselves, and that they usually use their breaks at these hours, this issue cannot be a ground for termination and the termination should be accepted as invalid, while the court decided to reject the lawsuit on the grounds written above is erroneous.
Pursuant to Article 20/3 of the Labor Law No. 4857, our Chamber has decided as follows.
JUDGMENT
For the reason explained above;
1. The decision of the court is VACATED and DISMISSED,
2. The termination is invalid and the plaintiff is reinstated,
3. DETERMINING the amount of compensation to be paid in the event that the plaintiff is not reinstated by the defendant employer despite the plaintiff’s application within the legal period, taking into account the seniority of the plaintiff, the reason for termination, and the amount of the plaintiff’s 4-month gross wage,
4. It is REQUIRED to collect from the defendant the wages and other rights up to a maximum of 4 months until the finalization of the decision, which will be entitled in the event that the plaintiff employee applies to the employer for reinstatement in due time,
5. Since the fee was collected in advance, it is not necessary to collect it again,
6. TL 307.60 judicial expenses incurred by the plaintiff to be collected from the defendant and given to the plaintiff, and the defendant’s judicial expenses to be left on the defendant,
7. To charge the defendant an attorney fee of 1.500 TL according to the tariff in force on the date of the decision and to give it to the plaintiff,
8. The advance appeal fee shall be returned to the relevant party upon request,
It was unanimously decided on 22.10.2015.
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