THE FACT THAT THE BUSINESS RELATIONSHIP HAS BECOME UNBEARABLE

T.C. SUPREME

9. Law Department Main No:2017/27210
   Decision No :2018/13713
   Date of Decision : 25.06.2018
   COURT : … DISTRICT COURT 10. law office
   CASE TYPE : RETURN TO WORK
   FIRST DEGREE
   COURT : … 6. EMPLOYMENT TRIBUNAL
   CASE: The plaintiff decides on the invalidity of the termination, his return to work and its legal consequences
   he wanted it to be given.
   The local court decided to dismiss the case.
   The plaintiff’s lawyer has filed an appeal against the rejection decision of the Court of First Instance.
   … District Court of Justice 10. Acceptance of the application for appeal by the plaintiff’s lawyer of the Legal Department and
   the plaintiff has decided to return to work.
   … District Court of Justice 10. The decision of the Legal Department is appealed by the defendant’s lawyer within the time limit
   however, after hearing the report prepared by the Examining Judge for the case file
   the case was examined, discussed and considered as necessary:
   THE DECISION OF THE SUPREME COURT
   A) Summary of the Plaintiff’s Request:
   The deputy plaintiff was appointed on 27/06/2012 by the plaintiff…Domestic and Foreign Trade A.Sh. in the … …shopping mall branch of
   as of November 2013, the company has changed hands and started working with Bimeks Information Processing and External
   Commerce A.Sh. The same continuation of the rights of employees of the previous employer to whom Ye was transferred
   provided that the respondent company has taken over the place of work, especially for unionized workers after the transfer of the respondent company
   that the plaintiff pursues a policy of termination of employment contracts by acting extremely negatively, exclusively, from work
   closing the payroll operations page to force you to resign in the days before the removal, November
   on 15/11/2014, the plaintiff verbally stated that he “disturbed the peace of mind at work despite verbal warnings, did not perform the tasks assigned” without any written notification, stating that he had been dishonored by situations such as closing his code, blocking his access to the system
   that the employment contract has been terminated in such a way that the defendant company’s reason for termination does not reflect the truth, the so-called
   that there is a justification, that the plaintiff’s employment contract was terminated because he was a member of a trade union, that the plaintiff’s entry into work
   since the date of termination, claiming that he has not received any disciplinary action, including warning, warning
   21 of the law No. 4857 on the return of the plaintiff to work with the determination of its invalidity. The work specified in the article
   No. 6356 is attached to the initiation application, regardless of the conditions of initiation or non-initiation of the employer
   according to Article 25/5 of the law, trade union compensation in the amount of 12 months’ wages and idle time are subject to
   he demanded that the defendant decide on the collection of the relevant 4-month fee and sued.
   B) Summary of Respondent’s Response:
   The defendant’s deputy, the plaintiff’s sales at the Bimeks store from 21/06/2012 to 14/11/2014
   that he worked as an advisor, that the plaintiff’s claims related to the case were unfair and contrary to procedure,
   termination of the plaintiff’s employment contract is completely different and justified from the trade union issues stated by the plaintiff
   that it is based on the reasons, the plaintiff does not comply with the rules and order of the defendant’s workplace, the order of the store
   responsibilities that he makes contrary attitudes and behaviors a habit and is responsible for doing
   that he insisted on not doing so, that termination became inevitable from the defendant’s point of view, the plaintiff
   the plaintiff’s attitude and behavior towards customers is not acceptable behavior
   on 22/10/2014, he entered into an argument with the client and was asked to defend himself on this issue, the client
   after asking the plaintiff for help, he said that the plaintiff wants to help the client and that the client
   that he had made bad words to the customer by arguing, these matters were determined by the camera recordings,
   since the plaintiff was found to have committed acts that would disturb the peace of mind of working in the store, the business
   termination of the agreement has been decided, the plaintiff is not within the information that he is a member of the union
   he has asked for the case to be dismissed by arguing.
   C) Summary of the Decision of the Court of First Instance:
   According to the court of first instance, the plaintiff is obliged to Decriminalize the defendant at work from 21.06.2012 to 17.11.2014
   the plaintiff worked as a retail sales consultant on 31.07.2016 with code 29, i.e. the employer
   termination of the employment contract by the employee due to his behavior in violation of the rules of morality and good faith
   an expert with a photo of the cd solution in the file dated 21.04.2015, when he quit his job due to
   from his report, the plaintiff argued with a client and physically interfered with each other, the thesis kop
   on 23.03.2016, the tender written from his trade union was answered, on 22.10.2014
   dated 15.11.2014, when the plaintiff’s written defense was received due to an argument with the client
   in the notification letter of termination, the plaintiff; attitude to the workplace rules and order in a repeated manner and
   a written defense of the employment contract is also required due to the fact that he insists on not performing the assigned tasks that he is obliged to perform, and that he exhibits behavior that disrupts the peace of mind of working in the store
   25 of the law No. 4857. According to the article, the cd in the file is terminated for the rightful reason
   together with the settlement minutes, the plaintiff’s written defense, witness statements and the entire file scope
   when assessed, the plaintiff’s employment contract is terminated due to an argument and physical altercation with a client and
   according to articles 25/2-e-h of law No. 4857, due to the fact that the plaintiff insists on not doing the tasks that he is obliged to do, even though he has been reminded of them, the plaintiff’s employment contract is for the right reason
   it was decided to dismiss the case on the grounds of termination.
   D) Application for appeal :
   Against the decision of the court of first instance, an appeal was filed by the plaintiff.
   E) The Reasons for the Appeal:
   The deputy plaintiff in the appeal application; the court decision is contrary to the procedure and the law, the justification
   that it is not based on material facts, that the evidence is not discussed and that there is no legal evaluation,
   the witnesses of the defendant make a biased statement as persons who are in an addictive relationship with the defendant company
   a person who requests a defense and discipline related to situations such as arguing with customers, fighting, etc., where they are located
   the defendant, who is conducting the investigation, for no reason other than the situation contained in the cctv footage
   that the plaintiff did not want to defend himself, did not initiate a disciplinary investigation against him, the lawsuit
   whether many issues requested and requested to be investigated in their petitions have been investigated
   he has claimed that.
   F) Summary of the Decision of the District Court of Justice:
   In the termination notification letter dated 15.11.2014 by the District Court of Justice, the plaintiff was told: “in the repeated manner
   attitudes and behaviors that are contrary to the rules and order of the workplace, the tasks that he is obliged to perform
   insisting on not doing it, exhibiting behavior that disrupts the peace of mind of working in the store
   25 of the law No. 4857, in which the written defense of the employment contract is also considered. According to the article
   ”the plaintiff was notified of the termination for the rightful reason,” on 30/12/2013, 22/10/2014 and 12/11/2014
   for their dialogue with the customer on their date and for their actions to disturb the peace of mind in the store
   as it is clear from the defense request letter dated 12/11/2014, in which his defense was received, the plaintiff
   after their defense dated 30/12/2013 and 22/10/2014, the plaintiff was verbally warned that the punishment
   it was issued on 12/11/2014, after the defense received on 15/11/2014 by the plaintiff
   the employment contract has been terminated, but the plaintiff’s actions based on his defense are valid or justified
   the reason why it was created cannot be proven by the defendant’s employer, as well as the information contained in the file and
   As can be seen from the camera recordings examined in our apartment, the client personally asked the plaintiff
   that the defendant employer has not fulfilled its obligation to protect the employee, as well as the plaintiff’s
   the fact that his action was also not cited as a reason for termination is the reason for the court to terminate this event, despite this
   it is not correct for the plaintiff to evaluate and make a provision for dismissing the case, this
   2 of Article 353/1-b of the HMK with the acceptance of the request for appeal against the issues. first, according to the lower subparagraph
   it was decided to eliminate the decision of the court of cassation and return the plaintiff to work.

G) Appeal application :
An appeal was filed by the defendant’s deputy against the decision of the District Court of Justice during the term.
H) Justification:
18 of the Labor Code No. 4857. the employer is responsible for the employee’s behavior and competence
he has given the authority to terminate the employment contract for the reasons arising from it. From the behavior of the worker
the purpose pursued in the resulting termination is the conduct of the employee in violation of the employment contract that he has previously committed
not to punish or sanction; to continue to violate its contractual obligations,
to avoid the risk of recurrence. Conclusion of the employment contract due to the employee’s behavior
in order for it to be terminated, the presence of a violation of the employee’s employment contract, a violation of the contract
need to. He acted in violation of the contract with the defective behavior of the employee and, as a result, the labor relationship
if it has been adversely affected, there will be a valid termination caused by the employee’s behavior.
In turn, due to the employee’s non-contractual behavior, which is not based on the defect and negligence of the employee, the
a liability cannot be assumed due to the valid reason for termination arising from the employee’s behavior
and it can’t be mentioned.
The reasons arising from the behavior and competence of the worker are determined by Article 25 of the same law. in the article
in addition to the reasons mentioned, although not of this nature, it is important that work is seen in workplaces
these are the causes that affect negatively. Caused by the behavior or incompetence of the employee
for reasons, it is important and reasonable for the employer to maintain the employment relationship
in cases where it cannot be expected, it will be necessary to accept that the termination is based on valid reasons.
Termination based on the employee’s behavior is, first of all, a violation of the employment contract by the employee
it is conditional. In this respect, which contractual obligation is concretely imposed on the employee first
it is determined, then, by what behavior of the worker, that he has violated his concrete contractual obligation
it must be determined in full. Undoubtedly, a violation of the employee’s employment contract should immediately notify the employer
it should also be examined in this context that it is not weighted to grant the right to terminate. Then, the worker
determining whether he could have avoided concretely violating his obligation if he had wanted to
need to. Due to the fact that the employee has been concretely identified as a breach of contract, the employer’s operational
it is imperative that their interests are harmed. Avoiding violating the obligation of the worker if
if it is determined that he has the opportunity to, whether the employee was given a warning before termination, despite the warning
19 of the Labor Code if he repeats his behavior.in accordance with the article, the job of taking the defense
his contract will be reviewed to see if he has been terminated. However, due to gross violations of obligations,
due to the employee’s behavior in cases where the employer cannot be expected to continue the employment contract
there will be no need for a warning. In other words, the Employee’s behavior in violation of the contract
depending on the type and weight of the work from the employer, provided that he behaves in accordance with the contract in the future
in cases where it is justifiably expected that he will continue his relationship, a warning should be necessary and mandatory; otherwise, the employer should be able to terminate the employment contract without warning. Accordingly, termination of the term to the employer
25 of the Labor Code, to which the right is granted.as a rule, due to the conditions specified in the article, the employee must
it should be recognized that there is no need to issue a warning.
The scope of the employee’s obligations is determined in the individual and collective labor agreement and legal regulations. The contract that the employee has caused to be defective (intentionally or negligently)
their violation becomes significant from the point of view of termination of the contract. In order to be able to mention the valid reason for termination,
it is not necessarily a deliberate violation of the contractual obligations of the employee. He must show
violation of the duty of care with negligent behavior in violation of the obligation is sufficient. In turn, to the fault of the worker
non-based behavior, as a rule, the employer is obliged to conclude a contract based on the employee’s behavior
it does not give the right to terminate. The degree of defect is determined by the fact that after the termination of the employment contract, the
in the estimated diagnoses made regarding the negativity that it may present, and the interests are weighed
it will play a role in balancing.
In determining whether the employee has violated the employment contract, not only his principal obligations;
side performance obligations arising from the law or the rule of honesty, as well as side obligations arising from consideration
must be taken. My loyalty burden means that the debts arising from the contractual relationship to the parties to the contract
failure to damage the person, property and other legally protected assets of the counterparty in its performance,
in particular, it will jeopardize the purpose pursued by the contract outside the scope of the contractual relationship
it imposes an obligation to refrain from any behavior that would undermine mutual trust.
By proving to the employer that the employee has violated his obligations arising from the employment contract as a defect
he is obliged to.
The employee’s obligation to see work is embodied in the instructions that the employer will give within the scope of the right of management.
The opposite of the right of management of the employer is the employee’s obligation to comply with the instructions of the employer. Employer,
in accordance with the right to instruction, where, how is the performance of work outlined in the employment contract, where, how
and it regulates when it will be done. Start and end times of the daily working time, Dec
how to implement rest, tools, equipment for distributing work at work or for using it, and
instructions for Deciphering techniques are considered to be among such instructions. Management of the employer
his right also includes providing instructions on maintaining order in the workplace and on the behavior of the employee.
In turn, the employer’s right to instruction is the amount of remuneration, which forms the main elements of the employment contract, and
there can be no question about the scope of the working time borrowed. The employer unilaterally increases the total
it does not have the authority to increase the working time or reduce it in such a way as to affect the fee. Employer
providing instructions to cover the main elements of the employment contract is in accordance with the performance in the employment contract
if the balance between the performance is disturbed, the provisions on job security will be Deciphered
it can be a topic. The employer has the right to issue instructions in accordance with the law, collective bargaining agreement and individual employment agreement
it is possible to narrow it and expand it. To put it another way, the employer’s instruction
the right to grant is limited by the provisions of the law, the collective bargaining agreement and the individual employment agreement. Therefore,
since the employer cannot issue instructions contrary to the provisions of criminal and public law, the employee must comply with this kind of
it is not necessary to follow the instructions. In addition, the employer may not issue instructions that violate the employee’s personality rights. In addition, the prohibition on the abuse of the right regulated by Article 2 of the Civil Code
as a matter of necessity, the employer cannot give instructions contrary to the honesty rule. At the moment, the employer is in favor of other workers
but he cannot give instructions that will create inequality that will have consequences against one or more workers, as well as
he cannot also give instructions to the employee for the purpose of giving eza and cefa. Accordingly, when the employer gives instructions, the equal
he is also obliged to comply with the transaction debt. In order for the employment contract to be validly terminated due to the employee’s behavior, the employee must
after the warning given, he must once again engage in behavior that constitutes a violation of his obligation.
If no new breach of obligations has occurred after the warning given to the employee, it is only the subject of the warning
the employment contract cannot be validly terminated on the basis of behavior. Because with the issuance of the warning
the employer implicitly waives the right to terminate the employment contract due to the behavior that is the subject of the warning
has made.

Termination due to conduct, however, is a milder remedy than termination of the contract
it is necessary when it is not. Another tool of the principle of moderation other than warning is the location of the workplace
it is the replacement. Changing the place of work is a milder remedy than termination
tool. But the implementation of this measure is possible from the point of view of the employer, and he is right
as expected, it depends on the condition. The possibility of employment of the worker at another place of work is mentioned
22 of the Labor Code in accordance with the principle of proportionality and the principle of ultima ratio, if it is not a subject.in accordance with the article
amendment termination should be considered.
The employee must comply with the instructions given by the employer within the scope of the right of management. According to the instructions of the worker
non-compliance gives the employer the right to a justified or valid termination of the employment contract, depending on the situation. The Labor Code
paragraph (h) of the second subparagraph of Article 25, the duties that the worker is obliged to perform are assigned to him
he accepts that his insistence on not doing so even though he has been reminded is a justifiable reason for termination. To this
in response, as stated above, according to the justification of the Labor Code, the employee “warns his job
although incomplete, poor or inadequate fulfillment is the “valid reason for termination (of our apartment
17.03.2008 day and Decision No. 2007/27680Esas, 2008/5302).
In a concrete dispute, the plaintiff’s employment contract was signed on 15.11.2014 “In the store of the addressee,
it is contrary to workplace rules and order in a way that is repeated in the observations made by the managers
his attitude and behavior are such that he insists on not doing the tasks assigned to the interlocutor, which he is obliged to do,
as it has been determined that the addressee has exhibited behaviors that will disturb the working peace in the store
employment contract, Labor Code No. 4857 25. According to the article, the employee who does not comply with the rules of morality and decency
the employment contract has been terminated as of 14.11.2014 for the justified reason caused by his behavior.”
it is considered to be defunct.
on 30.12.2013, the plaintiff allegedly left her alone by responding in the opposite direction to a client
the defense has been received and in the minutes kept on 22.10.2014, the plaintiff is again with a client
according to the statements of the client, he entered into an argument, stated that he had physically interfered and insulted, declared that he had performed his duty properly in the plaintiff’s defense, and accepted the charges
from the examination of the CD recordings that were analyzed by the court regarding the discussion event that it did not
the plaintiff is arguing with a client and the plaintiff and the client are arguing and coming towards each other ,
the plaintiff pushed the customer holding his neck with his hand and the fight was broken up by the store attendants, the defendant witnesses who were also listened to
the plaintiff’s agreement was terminated after an insulting discussion with the client, and before that the business
declare that he has a problem with his friends and that a store change has also been made for these reasons
suggested it. The plaintiff has caused negativity in the workplace with these actions, now the employer has to deal with the plaintiff
it is understood that the plaintiff’s employment contract cannot be expected from him to continue working
termination is based on a valid reason and the court decides to accept the case instead of rejecting it
is incorrect.
The appealed decision of the District Court of Justice must be overturned and eliminated, and our Apartment
20/3 of the Labor Code No. 4857. according to the article, it was necessary to decide as follows.
PROVISION : On the grounds described above;
1.ANNULMENT AND ELIMINATION of the decision of the District Court of Justice,

2. REFUSAL OF THE Case,
3. 25.20 TL received in advance from the decision-making fee of 35.90 TL that needs to be taken.with the deduction of the balance 9,70
   The decision fee of TL is collected from the plaintiff and transferred to the treasury,
4. 350.00 TL, which the defendant made, should be left above the trial expenses incurred by the plaintiff
   paying the trial costs to the defendant by collecting them from the plaintiff,
5. The fee of TL 2,180.00 determined according to the tariff in force at the date of the decision is determined by the attorney’s office from the plaintiff
   to be taken and given to the defendant,
6. Refund of unused advances to the relevant person upon request,
7. If the appeal fee received in advance is returned to the defendant at his request, the First Instance of the case file
   A copy of the decision shall be sent to the District Court of Justice,
   The final was decided by unanimous decision on 06/25/2018.