Is the Fact that the Employee Has Caused Damage to the Employer’s Property without Fail the Reason for the Justified Termination

9.LEGAL DEPARTMENT 2017/4905 E. , 2017/8483 K.
“text of jurisprudence”
TRIBUNAL :EMPLOYMENT TRIBUNAL

LAWSUIT: The plaintiff requested that a decision be made on the payment of overtime pay, week holiday pay and national holiday and general holiday pay receivables with notice compensation.
The local court has decided to partially accept the case.
Although the parties were appealed by their lawyers during the sentencing period, after hearing the report prepared by the Examining Judge for the case file, the file was examined, discussed and considered as necessary:

THE DECISION OF THE SUPREME COURT

A) Summary of the Plaintiff’s Request:
The plaintiff claimed that he worked as a mixer driver at the ready-mixed concrete plant belonging to the defendant between Dec3/11/2012 and 12/08/2013, and that his employment contract was terminated unfairly by the employer and requested the collection of overtime, week break, national holiday and general holiday receivables with notice compensation.
B) Summary of the Respondent’s Response:
The defendant asked for a dismissal of the case, arguing that the plaintiff had an accident with the truck he was driving and caused themselves damage, that the amount of damage was too much than the plaintiff’s 30-day fee, that he was not entitled to compensation, and that he also did not have a fee to pay.
C) Summary of the Decision of the Local Court:
Based on the evidence collected by the court and the expert report, the expert review on termination of an employment contract related to the subject accident reserved, also occupational risk assessment and defect rate of the traffic accident to the driver according to the compensation of damage that should be made accordingly by focusing on the employer and the plaintiff was entitled to compensation for unjustified termination of that he’s also more work, weekends and public holidays for the reason that upon the adoption fee, they’ll get the partial of the case, it’s decided.
D) Appeal:
The decision was appealed by the parties.
E) Justification:
1- According to the evidence collected from the articles in the file and the legal reasons on which the decision is based, the parties’ appeals that fall outside the scope of the following paragraphs are not in place.
2- There is a dispute between the parties on the point of termination of the employment contract by the employer due to the fact that the employee has harmed the employer and whether it has been terminated Decisively.
in the subparagraph (i) of subparagraph (II) of Article 25 of the Labor Code No. 4857, it is stated that if the employer damages the machines, installations, items or items that are the property of the employer or are in his hands in a way that exceeds the amount of thirty days’ wages, the employer has the rightful termination facility.
If it turns out that the employee is flawless, there is no possibility of justified termination of the employer, as well as if the employee’s defect has been determined as a certain percentage or a certain proportion; it should be checked whether the amount of damage exceeds the thirty-day wage after this defect has been relatively reduced (Supreme Court 9.HD. 281.2010 day, 2008/14825 E, 2010/1448 K.).
The fact that the damage is caused by the deliberate behavior or tactful action of the employee has no effect on the legal outcome. For example, the employment contracts of an employee who intentionally damages the pallets of the employer’s work machine by inserting a metal object or damages the employer as a result of a traffic accident may be terminated for the same reason. The defect and damage of the worker must be determined by individual experts (Supreme Court 9.HD. 26.1.2010 day, 2009/25906 E, 2010/1326 K). Although there is no clarity in the Law on the point that the thirty-day wage of the employee to be compared with the amount of the loss should be considered gross or net, the gross wage should be based on the principle of interpretation in favor of the employee. Thirty days is a different concept than a month. At this point, instead of the monthly wage paid to the employee, the amount of thirty times his daily wage should be taken into account.
The fee mentioned in the article is a fee in a narrow sense. Bonuses, bonuses, overtime pay and similar payments should not be considered within the thirty-day wage contained in this article. However, in cases where the fee is determined as an additional fee or a sales premium based on the work done on the guaranteed fee, it is appropriate to evaluate the actual fee as the sum of these payments. For example, in practice, international freight truck drivers work for a minimum wage and a service premium. The part called the expedition pyramid is also a fee in a narrow sense. In this case, the thirty-day pay in the sense of the application of the article should be determined according to the sum of both payments from the point of view of truck drivers (Supreme Court 9.HD. 24.11.2008 day 2007/32361 E, 2008/32028 K.).
If the loss exceeds the thirty-day wage, the employer has the right to terminate it. The fact that the employee has paid or will pay the damage immediately does not eliminate this right of the employer. The fact that the employer has not requested the amount of damages from the employee does not eliminate the right to termination.
In accordance with Article 26 of the Labor Code No. 4857, a one-year period of entitlement reduction begins from the date of occurrence of the event that caused the loss. However, the second period of six working days, after determining the amount of damage, will begin to be processed by transmitting this situation to the competent authority for termination. Determining the amount of damage can sometimes take a long time, and there is an obligation to determine the amount of damage and compare it with the employee’s wage in terms of exercising the right to termination.
In a concrete dispute, it is understood from the information and documents in the file that the plaintiff’s employment contract was terminated verbally due to damage caused by an accident with a vehicle used by the employer.
If there is a finding of the plaintiff’s fault in the incident of the accident that occurred, there has been no investigation into the ratio. If the court receives an expert report on the defect and determines that the plaintiff is defective, it should be determined whether the damage exceeds the gross fee of 1 month in accordance with the defect rate and the right of termination should be evaluated accordingly. It is wrong to reach a conclusion with incomplete examination and research.
3- There is a dispute between the parties regarding the amount of the monthly wage paid to the employee. Dec.
The plaintiff claimed that he worked as a mixer driver at the defendant’s workplace and that his monthly wage was a net of 1,300.00 TL on the date of termination (on 12/08/2013), while the defendant party argued that the wage was a gross of 1,258.92 TL as shown in the payrolls.
Although the expert report based on the judgment has been credited to the payroll, this acceptance is not appropriate for the work done by the plaintiff with the evidence in the file.
The plaintiff’s witnesses who were heard and the defendant’s witness made statements that confirm the plaintiff’s claim. Considering the business situation and especially the statement of the defendant’s witness, it is accepted that the alleged fee has been proven and the plaintiff’s receivables should be determined accordingly, while the erroneous assessment and written acceptance of the fee is incorrect.
4- Although in the expert report based on the judgment of the court, the claimant’s work order was respected for the interviews submitted by the employer, the plaintiff declared that the interviews submitted were copies, and if the original was submitted, they would make a statement about the signature.
The validity status of the interviews should be evaluated by considering the witness statements for the interviews after the original of the existing interviews has been shown to the plaintiff by asking the employer and receiving the statement by considering the objection of the plaintiff by the court.
5- Regarding the fact that the plaintiff will receive overwork, for the period when there is no written evidence in the expert report based on the verdict, according to witnesses, it was accepted that the plaintiff works from 07.00 to 23.00 hours a day in winter and from 08.00 to 19.00 hours a day in summer, Dec Dec to witnesses.
Although the plaintiff witnesses have made statements that the defendant works at the workplace between 07.00-23.00 hours for 7 days a week, the statements of the party witnesses should be evaluated together, taking into account whether the work done Dec contrary to the usual flow of working life described. Accordingly, the plaintiff, in the summer of from 08.00-18.00 during the winter months between the hours of 08.00-22.00 hours of work in written form between the acceptance is an acceptance of the work while it is wrong.
6- There is a dispute between the parties on the issues of whether the employee is given a Dec Dec rest while working at the workplace and its duration.
The employee cannot be expected to work without interruption during the daily work period without any Decessence. During the day, the worker needs a certain amount of time to rest or because of needs such as food, tea, cigarettes.
Decommissioning is regulated by Article 68 of the Labor Code No. 4857. In this provision, the Decadal rest period is determined in a gradual manner according to the daily working time. Accordingly, for daily work lasting four hours or less, Dec rest should be given for at least fifteen minutes, for work lasting more than four hours and less than seven and a half hours, for work exceeding at least half an hour and for work exceeding seven and a half hours daily, Dec rest should be given for at least one hour. In practice, there are also daily working hours in which the seven-and-a-half hour working time is too much exceeded. According to the provisions of Article 63 of the labour law, the stage won eleven hours daily working time, work in excess of seven hours designated by Article 68 in terms of at least one hour daily rest period of eleven hours Dec acknowledged that it must be related to the work. In other words, for studies up to eleven hours a day (including eleven hours), Dec rest should be given for at least an hour, and for studies over eleven hours, at least an hour and a half.
In a concrete dispute, it is incorrect to accept an interim rest of 1.5 hours, while in the expert report based on the Court’s decision, the plaintiff’s daily 11-hour work should take into account the 1-hour break, as described in the above Dec Decisionprincipled, while the expert report should take into account the 1.5-hour break.
an Dec rest period of 1 hour should be accepted for 11-hour studies and 1.5 hours for studies exceeding 11 hours.
7- It is also erroneous not to think that not specifying whether the receivables under consideration are net or gross would lead to hesitation in execution, and it required a breakdown.
F) The result:
It was unanimously decided on 22/05/2017 that the appealed decision would be OVERTURNED for the reasons written above, and that the appeal fee received in advance would be returned to the interested party upon request.

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