Whether the Employer’s Termination Is Justified If the Employee Receives Frequent Reports

T.C.
SUPREME
9. law office
E. 2016/29524
K. 2017/12122
T. 6.7.2017
The plaintiff 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 an appeal was made by the defendant’s lawyer during the sentencing period, the report prepared by the Examination Judge for the case file was heard, the file was examined, discussed and considered as necessary:
DECISION : A-) Summary of the Plaintiff’s Claim:
The plaintiff’s attorney stated that the plaintiff worked as an Editor at the defendant’s workplace between 09/05/2011-31/08/2015 for the last time, in the Decommissioning letter of the defendant employer; the client often report that the illness of various diseases that originated from the stress of the job and thought that worked in the media industry where the company is located will not be changing the conditions of the question, considering the fact that in the workplace the workplace situation that affects the normal functioning of immortality that was the cause of disruption and claimed to be an obstacle to the continuation of the employment relationship and the service contract is dissolved by the employer that is not based on a valid reason for the termination of a work contract, during the first three years working for a client that started because of illness, I almost never have allowed it has taken more than two days in a year and sick days in the last year of the study but not stress-induced illnesses due to receive more frequent reports, subject, arising from reports of the disease in question does not exceed his client as 10-12 days total within a year of sick leave days, even has the right to work from home, doing work almost 7 days a week, by the plaintiff didn’t even use the annual permissions, to be patient and permission of the client (such as diabetes and shingles) that is not able to cause disruptions and disturbances in the workplace, as long as the client is running is in constant contact with his team mates, sick leave days, even from your home to your friends and doing the routing information, the plaintiff of the worker’s employment contract has been terminated without a valid reason he indicated, that the termination is invalid and wanted to plaintiff’s decided to return to work.
B-) Summary of the Defendant’s Response:
The defendant’s employer’s attorney stated that the plaintiff owns Haber Türk Television and that the plaintiff works as an Editor at the Culture and Arts Unit of Haber Türk Television, that prior to requesting the plaintiff’s defense and the termination process, he received reports 20 times and used reports for a total of 40 days, moreover, in addition to the days when the plaintiff reported, doctors’ examinations, traffic jams, etc. excuse many times with permission by declaring the reasons that was not a full day or half a day, before the plaintiff’s employment contract was terminated for the last 6 months period, the administrator due to a migraine coming late, due to traffic, can make it to the meeting on the road, stays, doctor visits by sending an SMS in the form of going to every day with the reporting unit managers 9.25-10.15 constantly that occurred between the hours of discomfort to the news conference, inspection, traffic jams, etc. that did not attend, citing the cases, the plaintiff in this way often leads to negativity and excuses take the report reports the workplace, the last to enter and assign someone to work instead of meeting of the problems with the plaintiff’s statements, to indicate that work stress has reached the point of ill will for a long time, evaluated the approach to work in the workplace, and service disruption and cause negative effects are considered to be an obstacle to the continuation of the relationship, it is a work contract and the payment that was dissolved by the all the legal rights, he argued that the case should be dismissed.
C-) Summary of the Local Court Decision:
At the end of the court proceedings, the plaintiff, who is not in the position of the employer’s attorney, started working at the defendant’s workplace on 09/05/2011 under an indefinite employment contract, and the defendant was last employed by the employer on 08/31/2015 while working as an editor 17 of the Labor Law No. 4857 of the employment contract. and 18. it has been determined and accepted that the plaintiff who has filed this lawsuit has been terminated in accordance with Article 1, that his seniority is more than 6 months as of the termination date and that more than 30 workers are employed at the workplace, that the plaintiff has a legal benefit in filing the lawsuit within the scope of job security. As a result of all these determinations, after examining all the records belonging to the plaintiff employee submitted to the file by the defendant, who is on the burden of proof; notice of termination according to the provisions of the plaintiff’s job description, the yield, the principles of the employer’s enterprise workplace rules that must be followed regarding whether involving objective and tangible in a way that is predetermined examined in conjunction with the testimony of the plaintiff in the workplace often leads to negativity and excuses take the report of reports, assign someone to work instead of to enter and the last meeting of the problems with plaintiff’s statements to indicate that work stress has reached the point of ill will for a long time, evaluated the approach to work, the service disruption and cause negative effects in the workplace and it is claimed to be an obstacle to the continuation of a termination by the mainstay of the relationship is made, the plaintiff in the absence of a conflict between the parties as to report on the dates specified, in which the plaintiff is acting in violation of any action against the offending employee behavior, in agreement with the result of the defendant’s business relationship with that is complete and concretely affected in a negative way by the employer, which relies on material facts, belirtilmek you’re clearly laid out where in contrast, , since the employee cannot be held responsible for his behavior contrary to the contract, which is not based on the employee’s fault and negligence, the employee’s behavior
it was decided to accept the case on the grounds that the termination of the employment contract directly without any warning or warning would be contrary to the principle that termination is the last resort due to the actions attributed to the plaintiff by the plaintiff’s duty, working conditions, in which the valid reason for termination also cannot be mentioned.

D-) Appeal:
The defendant’s attorney appealed the decision.
E-) Justification:
20 / II of the Labor Law No. 4857.c.in article 1, it is clearly stated that the burden of proof that the termination is based on valid reasons is given to the defendant employer. When fulfilling the burden of proof, the employer will first prove that he has complied with the formal conditions of termination. Accordingly, he must have made the termination procedure in writing, documented that he wants the employee to defend himself in certain cases, and concretely and clearly indicated the reasons for termination based on the content of the written termination procedure. After it is understood that the employer has fulfilled the formal conditions, it will proceed to the stage of proving that the reasons for termination are valid (or justified) in terms of content. 18 of the Labor Law No. 4857. the article gave the employer the authority to terminate the employment contract for reasons arising from the employee’s behavior and competence. The purpose pursued in the termination arising from the employee’s behavior is not to punish or sanction the behaviors contrary to the employment contract that the employee has committed before; it is to avoid the possibility of his continuing to violate the contractual obligations and repeating them. In order for the employment contract to be terminated due to the employee’s behavior, it is necessary for the employee to have a behavior that is contrary to the employment contract and violates the contract. If the employee has acted contrary to the contract with his defective behavior and the employment relationship has been negatively affected as a result, there is a valid termination resulting from the employee’s behavior. On the other hand, since no liability can be imposed on the employee for his behavior contrary to the contract, which is not based on the employee’s fault and negligence, the valid reason for termination arising from the employee’s behavior cannot be mentioned either. The reasons arising from the employee’s behavior and competence are determined by Article 25 of the same Law. in addition to the reasons specified in the article, although they are not of this nature, they are the reasons that significantly negatively affect the appearance of work in workplaces. For reasons arising from the employee’s behavior or incompetence, in cases where the continuation of the employment relationship cannot be expected to an important and reasonable extent from the employer’s point of view, it will be necessary to accept that the termination is based on valid reasons. The employer, who has the burden of proof on himself, must also prove that the plaintiff’s behavior or incompetence has caused negativities in the workplace for a valid and justifiable reason and that the employment relationship has become unbearable. On the other hand, in the justification of the Labor Law, it is considered as an example of which cases will grant the right to valid termination due to the incapacity of the employee, and one of them is getting sick frequently and receiving reports. In case of receiving frequent reports, the employer will not be able to benefit from the employee’s job performance, albeit intermittently. It is a clear phenomenon that the employee who gets sick frequently and receives reports will cause negativity in the workplace due to his absenteeism. In the justification of the Labor Law, frequent illness is considered as an example as a reason arising from competence, because it is accepted that it causes negativity in the workplace. The employer complies with Article 18/3 of the Labor Law No. 4857. 25/I of the same law in accordance with Article F.in accordance with article b, in addition to the preliminary, he may not terminate the employee’s employment contract within the six-week waiting period. However, the fact that the employee receives frequent reports, including intermittently, does not fall within this scope. In case of receiving frequent reports, even if the total reported period remains within the waiting period, if receiving frequent reports has led to negative situations at the workplace, the employee’s employment contract may be terminated with notice or for a period of time. In this case, the termination is based on the valid reason.
According to the contents of the file, it is understood that the plaintiff received reports for a total of 39 days 9 times in 2015, 5 times in 2014, 3 times in 2013 and 2 times in 2012, and repeated them frequently in 2015, although other years are not taken into account, in fact, this situation is also accepted by the court. There were minutes that the plaintiff was often late for meetings or did not attend, stating that he was going to the doctor, as well as minutes that he did not attend and did not inform. In the most recent defense of the plaintiff, he stated that he was having problems with his supervisor, that his psychology had deteriorated and that he had received a report because of his discomfort.
According to these concrete material and legal facts, it is understood that the plaintiff attended meetings late or did not attend, whether he received a report or not, there were problems with his superiors at work, he often received reports and did not attend meetings, which led to negative situations at work. From the point of view of an employee whose behavior and efficiency cause negativities in the workplace and make the continuation of the employment relationship unbearable, the principle of termination as a last resort cannot be mentioned. For these reasons, since the termination is based on a valid reason, the acceptance of the case with a written justification instead of rejection is erroneous. In accordance with Article 20/3 of the Labor Law No. 4857, our Department has decided as follows.
CONCLUSION : With the reason explained above;
1.To ELIMINATE the court’s decision BY OVERTURNING,
2.DISMISSAL OF THE CASE,
3.Since the fee was received in advance, there is no place for it to be taken again,
4.To be left over the trial expenses made by the plaintiff, 5.The fee of 1.980,00 TL determined according to the tariff in force on the date of the decision of the power of attorney from the plaintiff
to be taken and given to the defendant, 6.It was definitely decided unanimously on 06.07.2017 to return the appeal fee received in advance to the defendant if requested.

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