The Exercise Of The Right To Complain That Does Not Constitute Defamation Or An Attack On Personal Rights Cannot Be Grounds For Termination Supreme Court Decision
Summary:
The plaintiff’s complaint against the employer regarding exposure to mobbing falls within the scope of the constitutional right to complain. If the complaint is an exercise of a right, it cannot constitute a valid or legitimate reason for termination unless it constitutes slander or an attack on personal rights. The court’s decision to dismiss the case in writing based on an erroneous assessment, rather than accepting it, is grounds for reversal.
T.C.
Supreme Court of Appeals
8th Civil Chamber
Case No: 2014/1440
Decision No: 2014/13116
Date:
CASE: The plaintiff requested a decision on the invalidity of the termination and reinstatement to work.
The local court decided to dismiss the case.
The case was appealed by the plaintiff’s attorney within the time limit for judgment. 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:
SUPREME COURT DECISION
A) Summary of the Plaintiff’s Claim:
The plaintiff’s attorney stated that his client worked as a sales and marketing manager at the defendant’s workplace between January 5, 2011, and April 2, 2012, that the plaintiff was subjected to mobbing at the workplace, that he verbally communicated this to the management, that instead of a solution, the pressure to resign increased, that the events were described in a warning letter dated February 23, 2012, sent through a notary public, that the plaintiff filed a complaint with the Istanbul Chief Public Prosecutor’s Office on March 28, 2012, because the problems were not resolved, that the plaintiff’s employment contract was terminated on April 2, 2012, with a warning letter pursuant to Article 4857/25-II -b of Law No. 4857, and that filing a complaint did not give the employer the right to terminate the contract for just cause, and requested that the termination be declared invalid, that the plaintiff be reinstated, and that compensation be awarded.
B) Summary of the Defendant’s Response:
The defendant’s representative stated that 20 customer visits were made per week, that the plaintiff stated he could only make 15 visits due to undergoing varicose vein treatment, that he made 8 customer visits between February 6-14, 2012, that during his period of rest, he sent a warning letter on February 23, 2012, stating that he worked until late at night, that he was asked to defend himself in a harassing manner, and that he was forced to resign, that the plaintiff was warned once in writing on December 17, 2011, to comply with working hours, that a response was sent to his defense dated February 14, 2012, with a notary warning dated March 1, 2012, and that a response was sent to his defense dated March 27, 2012, with a notary warning dated March 27, 2012, stating that he was expected to comply with working hours. 2012, a response was sent to the defense dated 1.3.2012 via a notary public warning letter, and a warning letter dated 27.03.2012 reminded him of what was expected of him. With the clarification that he would continue to insist on not fulfilling his duties, it was decided to terminate the employment contract on 02.04. 2012, that the plaintiff’s employment contract was terminated in accordance with Article 25/II of Labor Law No. 4857, and that the plaintiff made false accusations and reports against the employer’s representative, and therefore the case should be dismissed for the reasons stated.
C) Summary of the Local Court’s Decision:
The court found that the plaintiff’s claim of mobbing was not proven. Although the plaintiff’s complaint against another employee fell within the scope of the constitutional right to complain, considering the complaint process, the investigation stage, the warnings and notices given by the defendant employer, and the defense letters, the plaintiff’s behavior caused negativity in the workplace and continued employment became unreasonable for the employer. The court ruled to dismiss the case on the grounds that the employer’s termination of the employment contract was based on valid reasons arising from the employee’s behavior.
D) Appeal:
The plaintiff’s attorney appealed the decision.
E) Reasoning:
In the specific case, the plaintiff’s employment contract required terminated pursuant to Article 25/II of Labor Law No. 4857 due to the plaintiff’s failure to meet the requirement of 20 customer visits per week, the plaintiff’s failure to meet even the reduced number of 15 visits (as proposed by the plaintiff due to his illness), and the plaintiff’s filing of a false accusation against the general manager with the Chief Public Prosecutor’s Office.
According to the file contents, it is understood that the defendant was first requested to submit a defense on February 14, 2012, regarding his failure to conduct the weekly customer visits required of him, and that the termination took place on April 2, 2012. There is no evidence in the file that the weekly number of 20 customer visits required of the plaintiff was previously determined in an objective, concrete, and measurable manner and communicated to the plaintiff. even though the number of visits expected from the plaintiff was reduced due to his illness, considering that the plaintiff was not given sufficient time to defend himself and for his visit performance to be objectively measured during the termination process, it is understood that a period of approximately two months cannot be considered sufficient to measure the plaintiff’s performance and therefore the reason stated in the termination notice is not valid.
It was observed that the plaintiff filed a criminal complaint with the Public Prosecutor’s Office, stating that he was forced to resign from his job on March 28, 2012, due to mobbing allegations, that he was pressured and constantly monitored to increase the number of visits, and that he was subjected to insults by the General Manager, who said, “You are an unqualified employee, you don’t even have a desk.” It is understood that the plaintiff’s unfounded accusations were also used as grounds for termination in the termination notice. As a result of the investigation, it was determined that the allegations were not supported, the legal elements of the crime were not present, and the plaintiff could file a lawsuit with the Labor Courts regarding the content of the report, which fell under the scope of mobbing, and a decision was made that there were no grounds for prosecution. The plaintiff’s complaint against the employer regarding being subjected to mobbing falls within the scope of the constitutional right to complain. If the complaint is an exercise of a right, it cannot be a valid or legitimate reason for termination unless it constitutes slander or an attack on personal rights. The court’s decision to reject the case in writing based on an erroneous assessment, rather than accepting it, is a reason for reversal.
Pursuant to the third paragraph of Article 20 of Labor Law No. 4857, the ruling must be overturned and the following decision must be made.
RULING: For the reasons stated above;
1-The court’s decision dated and numbered above is OVERTURNED AND SET ASIDE,
2-The TERMINATION by the employer is DECLARED INVALID and the plaintiff is REINSTATED,
3-If the employer fails to reinstate the plaintiff within the statutory period despite the plaintiff’s application for reinstatement within the statutory period, the amount of compensation to be paid shall be determined as four months’ salary, taking into account the reason for termination and seniority,
4-If the plaintiff applies to the employer within the specified period for reinstatement, it is determined that the plaintiff is entitled to receive up to four months’ salary and other rights accrued until the decision becomes final, and that any notice and seniority compensation paid shall be deducted from this amount if the plaintiff is reinstated,
5-Since the fee has been paid in advance, there is no need to collect it again,
6-Since the plaintiff was represented by counsel, the attorney’s fee of TL 1,500, according to the tariff in effect on the date of the decision, shall be collected from the defendant and paid to the plaintiff,
7-The litigation costs of TL 329.00 incurred by the plaintiff shall be collected from the defendant and paid to the plaintiff, and the litigation costs incurred by the defendant shall be borne by the defendant,
8-The advance appeal fee shall be refunded to the relevant party upon request. This decision was made unanimously on April 17, 2014.