T.R. JUDICIARY
- Law Office
Basis: 2016 / 11845
Decision: 2016 / 14174
Decision Date: 10.05.2016
ACTION FOR INVALIDITY OF TERMINATION AND RETURN TO EMPLOYMENT – TERMINATION OF THE EMPLOYMENT AGREEMENT ON THE REASON THAT THE APPLICANT WORKING AS AN INSTALLATION WORKER SMOKE SMOKING IN THE WOMEN’S TOILET – EMPLOYEE’S OWN VOICE AND WARRANTY
ABSTRACT: In terms of the concrete case, it should be accepted that the defendant employer terminated the plaintiff employee’s employment contract with a just cause based on the reason that “the employee’s own will and negligence endanger the safety of the job …”, while the invalidity of the termination and the acceptance of the request for reemployment should be abolished by overturning the court decision.
(4857 S. K. Art. 20, 25, 28)
Lawsuit: The plaintiff requested that the termination be invalid and reinstatement to be decided.
The court partially granted the request.
Having appealed by the defendant’s lawyer during the sentence, the file was examined and the need was discussed and considered:
Decision: The plaintiff’s attorney, who has been working as an assembly worker at the defendant’s workplace since 04.09.2007, concluded that the employer’s employment contract was determined by the defendant employer on 23.03.2015 on the grounds that he smoked in the women’s restroom of the workplace as of 27.03.2015, as of 27.03.2015, 25/II-ı of the Labor Law No. 4857. . The termination of the employment due to “the worker’s own will and negligence jeopardizing the safety of the job …” stipulated in the clause, the invalidity of the termination on the grounds that the reason for the termination does not reflect the truth and the termination is unlawful, the reemployment, the indemnity of four months’ wages and the compensation for not starting the job despite the employee’s application to the employer. requested that it be decided to be determined not less than the amount of four months’ wages.
The attorney of the defendant stated that the plaintiff is well aware of the rules and regulations regarding smoking in the workplace, since he has been a worker at the defendant workplace for seven and a half years since 04.09.2007, and that smoking is prohibited in all areas except the canteen in the workplace, during employment training and periodic periodicals. that all employees are informed and reminded with warning signs in all trainings on occupational health and safety that are repeated as repeated, because every butt that is not well extinguished has the risk of causing a fire in the workplace; With the decision of the disciplinary board, unanimously, on the grounds that the plaintiff clearly violated both the workplace rules and the regulations brought by the law and endangered the occupational safety in the workplace. the plaintiff’s employment contract was terminated immediately and without compensation for just cause, and the lawsuit be dismissed.
The court decided that the termination made by the defendant was invalid and that, upon the acceptance of the claimant’s request for reemployment, the wages and other rights of the plaintiff that arose up to a maximum of four months during the period of non-employment should be paid, and the compensation for not starting work would be determined in the amount of four months’ gross wage.
The verdict was appealed by the defendant’s attorney.
According to the contents of the file, in terms of the concrete case, it is understood by everyone that smoking indoors is also a violation of the law, as it is understood that the employer fulfilled the warnings regarding the smoking ban in the workplace by hanging warning signs and signs all over the workplace, including the toilet. In addition, in the 39th article of the internal regulation, which is an annex to the collective bargaining agreement in force between the employer and the worker’s union, smoking, using matches and lighters in places with no smoking sign, and entering these places with cigarettes, fire or flammable and combustible materials are stated as grounds for dismissal. . For this reason, as stated in the court’s reasoning, it is wrong to make a provision for the plaintiff’s reemployment based on reasons such as the toilet being the only smoking place and the toilets being covered with tiles. Moreover, as can be understood from the statements of the defendant’s witness, who is an occupational health and safety expert, considering the fact that the toilet is close to the production areas and the materials around it are flammable, it should be accepted that smoking poses a danger to the whole workplace and occupational safety.
For all these reasons, in terms of the concrete case, it is accepted that the defendant employer terminated the employment contract of the plaintiff employee with just cause, based on the reason that “the employee endangered the safety of the job due to his own will and negligence…”, which is included in sub-paragraph (i) of the second paragraph of the 28th article of the Labor Law No. 4857. However, the invalidity of the termination and the abolition of the court’s decision regarding the acceptance of the reemployment request by overturning, and in accordance with the 3rd paragraph of Article 20 of the Law No. 4857, the following decision had to be made.
Result: As explained above
with justification;
1-The decision of the court, the date and number of which is stated above, is reversed and eliminated,
2- REJECTION OF THE CASE,
3- Since the fee is paid in advance, there is no room for it to be taken again,
4-To be left above the trial expenses incurred by the plaintiff, to pay the defendant’s 153.00 TL litigation expenses to the defendant upon collection from the plaintiff,
5-According to the tariff in force on the date of the decision, the attorney’s fee of 1,800.00 TL is collected from the plaintiff and given to the defendant,
6- It was decided unanimously on 10.05.2016 that the prepaid appeal fee be returned to the defendant upon request.