Supreme Court of Appeals Decision on the Prescription Period to Terminate for Just Cause

Decision Date: 30 January 2023

Summary

In its decision dated 30 January 2023, with file number 2023/9430, decision number 2023/8075 and published in the Official Gazette dated 2 September 2023 and numbered 32297, the 9th Civil Chamber of the Supreme Court of Appeals ("Court"), pointed out that the six business days, which is the prescription period to terminate for just cause, starts from the date when those within the employer's organization who have the authority to terminate employees are notified of the disciplinary board's decision. In the case in question, the Court stated that the termination was made within the prescription period of six business days, and therefore, the decision to accept the case was not appropriate. As a result, the Court reversed the decision of the court of first instance in the interests of law.

Important Details

  • The court of first instance, based on the date of the incident that justified the termination, viewed that six business days, which is the prescription period to terminate for just cause, had lapsed, and therefore accepted the plaintiff's claims for statutory seniority and notice compensations.
  • The Ministry of Justice requested that the decision of the court of first instance be reviewed on appeal in the interests of law. In the appeal petition, it was stated that an investigation was conducted after the incident subject to termination, that the disciplinary board decided to terminate the employee within the scope of the investigation findings, and that the employer terminated the employee's employment agreement within the prescription period of six business days following the notification of the disciplinary board decision.
  • The Court stated that if the employer is a legal entity, the period of six business days' starts from the date when those within the employer's organization who have the authority to terminate employees learn about the incident subject to termination, that the inspector's investigation or the discussion of the incident by the disciplinary board does not start the prescription period. Therefore, the Court stated that the termination was carried out within the prescription period and thus found the decision of the court of first instance unjustified and reversed it in the interests of law.

Decision of the Regional Court of Appeal on Exceeding 270 Hours of Overtime Work Annual Limit

Decision Date: 16 May 2023

Summary

In its decision dated 16 May 2023 with file number 2019/3649 and decision number 2023/1370, the 29th Civil Chamber of the Istanbul Regional Court of Appeals ("Court") ruled that if the annual overtime working hours exceed 270 hours, which is the legal maximum limit, this does not entitle the employee to terminate employment for just cause if the consideration for the overtime work is paid to the employee in full.

Important details

  • The plaintiff employee ("Plaintiff") claimed that he was employed overtime by the defendant employer ("Defendant") for 468 hours per year, contrary to the mandatory provisions of the law and, therefore, he terminated his employment agreement for just cause and demanded statutory seniority and notice compensations.
  • The court of first instance accepted the Plaintiff's termination for just cause due to exceeding the legal maximum limit and ruled statutory seniority compensation in favor of the Plaintiff.
  • The Court reversed the decision of the court of first instance on the grounds that the provision in Article 41 of Labor Code No. 4857 stipulating that overtime work cannot exceed 270 hours per year is not mandatory and that the payments as the consideration of the Plaintiff's overtime work were made, and the Court decided to reject the Plaintiff's demands for statutory seniority and notice compensations.

New Decision on Union Rights by the Constitutional Court

Decision Date: 24 May 2023

Summary

The individual application decision of the Constitutional Court of the Republic of Türkiye ("Constitutional Court") numbered 2020/11279 ("Decision") was published in the Official Gazette dated 29 August 2023 and numbered 32294. The Constitutional Court ruled that the termination of the employees' employment agreements due to the work slowdown they initiated to protect their union rights constituted a violation of their union rights.

Important details

  • In the Decision, the applicants applied to the Constitutional Court against the decision of the court of appeal, which reversed the reinstatement decision of the first instance court, claiming that their union rights were violated.
  • The applicants stated that the employer tried to prevent unionization in the workplace, the employer assigned a unionized employee to a distant district to intimidate the employees, the union initiated a work slowdown that continued for three days and the employer terminated the employment agreements of the employees for this reason.
  • The court of first instance ruled that the termination of the applicants' employment agreements was based on union related reasons.
  • The court of appeal, which reversed the reinstatement decision of the first instance court, stated that the employees acted in violation of the principle of proportionality in pursuing their union rights and that the employer had a valid reason for terminating their employment agreements.
  • The Constitutional Court determined that the work slowdown was carried out to prevent undermining the union's power in the workplace, the work slowdown, which lasted for three days, was compensable in material terms; therefore, the work slowdown did not go beyond the purpose of pursuing rights, and the employer must endure this situation.
  • In addition, the Constitutional Court ruled that the termination of employment agreements of employees who use their union rights is contrary to the principle of last resort of termination and underlined that the threat of termination may prevent the exercise of fundamental rights and freedoms.

Supreme Court of Appeals Decision on Salary Change upon Recruitment of a Subcontractor's Employee

Decision Date: 12 June 2023

Summary

In its decision dated 12 June 2023 with file number 2023/10609, decision number 2023/8901 and published in the Official Gazette dated 1 September 2023 and numbered 32296, the 9th Civil Chamber of the Supreme Court of Appeals ("Court") determined that the employment agreement executed at the time of the employee's recruitment did not explicitly regulate the employee's claims regarding the salary. In addition, the Court ruled that the employee's claims were related to the practice implemented in the period during which the service procurement agreement continued, and for these reasons, the Court reversed the decision of the court of first instance in the interests of law.

Important details

  • The plaintiff employee ("Plaintiff") claimed that while working for the subcontractor, he was paid over 30% more than the statutory minimum salary, and that after being recruited by the principal employer, his salary should also be determined over 30% of the statutory minimum salary and then the collective bargaining agreement increases should be applied; however, the defendant employer ("Defendant") underpaid him by applying a collective bargaining agreement increase of 4% to his salary received on 1 January 2019 and demanded the payment of the outstanding receivables.
  • The court of first instance partially accepted the lawsuit and ruled to pay the salary difference and additional payment receivables from the Defendant to the Plaintiff.
  • The Ministry of Justice requested that the decision of the court of first instance be reviewed on appeal in the interests of law. In the appeal petition, the Ministry of Justice stated that the employment agreement of the Plaintiff, who was recruited by the principal employer, did not explicitly state that the Plaintiff would be paid a certain percentage of the statutory minimum salary, and, therefore, the lawsuit about the salary difference and additional payment receivables should be dismissed.
  • The Court determined that the employment agreement concluded between the parties during the recruitment of the Plaintiff by the principal employer did not explicitly stipulate that the Plaintiff would be paid a salary at a certain rate of the applicable statutory minimum salary. Furthermore, the Court stated that the determination of the salaries of the employees employed by the subcontractor as a certain percentage above the statutory minimum salary was a practice related to the period in which the service procurement agreement continued and, for these reasons, reversed the decision of the court of first instance in the interests of law.

Supreme Court of Appeals Decision on the Inclusion of the Extrajudicial Ordinary Partner to the Lawsuit

Decision Date: 22 June 2023

Summary

In its decision dated 22 June 2023 with file number 2023/10476, decision number 2023/9999 and published in the Official Gazette dated 18 August 2023 and numbered 32283, the 9th Civil Chamber of the Supreme Court of Appeals ("Court") stated that the lawsuit filed against the companies constituting an ordinary partnership does not have to be filed against all partners together, that there is an optional litigation partnership among the partners and that it is not appropriate to include the extrajudicial ordinary partner in the lawsuit. Accordingly, the Court reversed the decision of the court of first instance in the interests of law.

Important details

  • In the case, the court of first instance determined that there was an ordinary partnership relationship between the defendant companies and the extrajudicial company in the lawsuit; therefore, it included the extrajudicial company in the lawsuit and decided that the related companies were jointly and severally liable for the employee receivables.
  • The Ministry of Justice filed an appeal in the interests of law against the decision of the court of first instance. In the appeal petition, it was stated that the company included in the lawsuit was not included in the mediation process.
  • The Court determined that there was no mediation process to which the company included in the lawsuit was a party, that mediation is a condition before filing the employee receivables lawsuit and, as the condition to file a lawsuit was not fulfilled, it was inappropriate to include this company in the lawsuit. Also the Court stated that the lawsuit filed against the companies constituting an ordinary partnership does not have to be filed against all partners together, that there is an optional litigation partnership among the partners.

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