If the Employer Does not Hire the Employee as a Result of the Return to Work Case, How Much Compensation Should the Employee Pay for Not Starting Work Supreme Court Decision

T.C. SUPREME

9.law office
Basis: 2016/36192
Verdict: 2018/998
Decision Date: 23.01.2018

RETURN TO WORK CASE – THE PLAINTIFF HAS WORKED FOR MORE THAN FIVE YEARS – THE TERMINATION PERFORMED BY THE EMPLOYER IS NOT BASED ON A VALID REASON – THE EMPLOYEE’S SENIORITY AND THE REASON FOR TERMINATION OF EMPLOYMENT ACCORDING TO THE NON-COMMENCEMENT COMPENSATION MUST BE DETERMINED AT THE RATE OF THE PLAINTIFF’S FIVE-MONTH SALARY

SUMMARY: It is understood that the plaintiff has worked for a total of more than 5 years, the employment contract was terminated due to insufficient performance, and the termination performed by the employer is not based on a valid reason, it is correct to decide on the invalidity of the termination and the plaintiff’s return to work. However, according to the seniority of the plaintiff employee and the reason for termination, it was not found correct by the court to determine the compensation for not starting work in the amount of the plaintiff’s 4-month salary. The determination of this compensation at the rate of the plaintiff’s 5 monthly fee will be in accordance with the content of the file.

(4857 Pp. K. m. 21) (2821 Pp. K. m. 31) (9. HD. 08.04.2008 t. E. 2007/27773 2008/7819 K.)

Lawsuit: The plaintiff has requested a decision to rule on the invalidity of the termination, his return to work and the legal consequences.

The local court has decided to accept the case.

Although the parties were appealed by their lawyers during the sentencing period, the report prepared by the Examination Judge for the case file was examined after the hearing, the file was discussed and considered as necessary:

SUPREME COURT DECISION

A) Summary of the Claimant’s Claim:

In summary, the plaintiff’s attorney requested that the plaintiff work as an employee in the defendant company, that the employment contract was terminated as invalid and unfair, and that compensation for idle time in the amount of 4 salaries and compensation for not starting work in the amount of 8 gross salaries be decided.

B) Summary of the Respondent’s Response:

In summary, the defendant’s attorney asked for the dismissal of the case, arguing that the termination of the plaintiff’s employment contract was based on a valid and justified reason.

C) Summary of the Local Court Decision:

In the evaluation of the evidence collected by the court and the scope of the entire file; more than six months with an indefinite term employment contract by the defendant of the plaintiff worked for the defendant in the eyes of more than thirty is the number of workers, according to the date of termination of an employment contract case opened within the thirty day period, the employer’s representative of the whole of the plaintiff’s work without that oversaw the defendant by the employer, the worker’s termination and the process of termination of an employment contract the plaintiff, labor law, dismissal procedures and procedure, as it is understood that the principle of equal treatment between employees and termination is not in accordance with the last resort is not in accordance with the claimant’s request, it was decided to accept the subsidized claim and award Decommissioning compensation in the amount of four salaries in accordance with the idle time fee and seniority (more than 6 months).

D) Appeal:

The plaintiff and the defendant appealed the decision.

E) Justification:

Stating that the employment contract was terminated by the defendant employer without a valid reason, the plaintiff employee requested that the invalidity of the termination and his return to work be decided.

While the invalidity of the termination and the return of the plaintiff employee to work were decided by the court, the compensation for not starting work was determined in the amount of 4 monthly wages of the plaintiff employee.

21 of the Labor Law No. 4857. in accordance with the article, when the court decides on the invalidity of the termination, if the employer does not start work within a month upon the employee’s application, compensation in the amount of at least 4, an not so much as 8 monthly wages must be determined to be paid to the employee.In accordance with the established practice of our department, this compensation, which is in the nature of job security, should be determined by taking into account such facts as the employee’s seniority, the reason for termination. The upper and lower limits of the substance cannot be exceeded. The only exception to exceeding the upper limit is Article 31 of the Trade Unions Law No. 2821. they are the terminations made for the union reason in the article. In this article, it is explained that the compensation for not starting work in the event of a trade union reason will be determined in the amount of at least one annual wage of the employee. The application of our apartment is in this direction. (08.04.2008 day and our decision numbered 2007/27773 Basis, 2008/7819 Decision).

Our apartment is 53 about annual paid leave. taking into account the periods of seniority in the article

4 for an employee with a Decency between 6 months and 5 years,
5 for the worker with a Decency between 5 years and 15 years, 5,
it provides for the determination of compensation for non-initiation of work in the amount of 6 monthly wages for an employee with more than 15 years of seniority, and the maximum limit on these amounts is up to 8 months, depending on the reason for termination.
The content of the file according to the plaintiff of the defendant of the worker in the workplace concrete the plaintiff in a dispute with workers ……06.10.2010 an indefinite term employment contract 01.07.2012 started with dated between on and as of the date the defendant employer ……. the plaintiff worker is working ….. as it is understood that the employment contract was transferred on 01.07.2012 due to the purchase, therefore the plaintiff worked for more than 5 years between 06.10.2010 and 09.10.2015, the employment contract was terminated due to lack of performance, the termination performed by the employer is not based on a valid reason, it is correct to Decipher the invalidity of the termination and the plaintiff’s return to work. However, according to the seniority of the plaintiff employee and the reason for termination, it was not found correct by the court to determine the compensation for not starting work in the amount of the plaintiff’s 4-month salary. The determination of this compensation at the rate of the plaintiff’s 5 monthly fee will be in accordance with the content of the file.

In accordance with Article 20/3 of the Labor Law No. 4857, our Department has decided as follows.

Judgment: On the grounds described above;

To ELIMINATE the court’s decision BY OVERTURNING,
The INVALIDITY OF the TERMINATION and the plaintiff’s RETURN TO WORK,
Despite the claimant’s application within the legal period, the amount of compensation that must be paid if the defendant is not hired by the employer within the period is determined in the amount of the 5-month gross salary of the claimant, taking into account the claimant’s seniority, the reason for termination,
In the event that the plaintiff applies to the employer for the return of the employee to work within the time limit, which will be entitled to, and up to a maximum of 4 months until the finalization of the decision, the wage and other rights SHOULD be collected from the defendant,
Since the fee was received in advance, there is no place for it to be taken again,
The 274,50 TL trial expenses made by the plaintiff are collected from the defendant and given to the plaintiff, the defendant is left over the trial expenses made by the defendant,
The fee of 2.180,00 TL determined according to the tariff in force on the date of the decision is taken from the defendant and given to the plaintiff,
The refund of the appeal fee received in advance to the relevant person upon request,
It was definitely decided by unanimous decision on 23.01.2018.

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