Article 25 of the Labor Law regulates the employer’s right of immediate termination for just cause. Accordingly, whether for a fixed or indefinite term, the employer may terminate the employment contract before the expiry of the term or without waiting for the notification period in cases of behavior that does not comply with the rules of ethics and good faith, such as sexual harassment by the employee. In such a case, the employee may be dismissed without payment of severance or notice pay. Examples of behaviors constituting a violation of the rules of ethics and good faith include: misleading the employer, words or behaviors affecting the honor and reputation of the employer or their family, sexual harassment, bullying, drunkenness at work, behaviors incompatible with honesty and loyalty, committing a crime at the workplace, absenteeism, failure to perform duties, endangering occupational safety, damaging the employer’s property, etc.
For this reason, as seen in the sample Court of Cassation decision below, the employee’s contract was terminated immediately by the employer for just cause due to the employee spying on female employees’ locker rooms and committing sexual harassment against female employees. As a consequence of immediate termination for just cause by the employer, the employee shall not be entitled to severance and notice pay.
Furthermore, it is accepted that the employee’s defense is not required for the employer to exercise the right of immediate termination for just cause due to behaviors incompatible with the rules of ethics and good faith. In this case, the employer terminates the employment contract through a unilateral declaration of intent.
The authority to terminate the contract granted to the employer based on cases incompatible with the rules of ethics and good faith cannot be exercised after 6 working days from the day one of the parties learns that the other party has performed such behaviors, and in any case, one year after the occurrence of the act.
Additionally, if the employer has suffered any loss due to the behaviors of the employee subject to termination, it is regulated under Article 26/2 of the Labor Law that the employer may claim compensation from the employee according to general provisions.
RELEVANT COURT OF CASSATION DECISION:
T.C. Court of Cassation 7th Civil Chamber Basis No: 2014/12153
Decision No: 2014/20578
Decision Date: 10.11.2014
Upon the request for the examination of the judgment rendered at the end of the lawsuit between the parties by the Court of Cassation upon the appeal of the defendant’s counsel; it was understood that the request for appeal was within the legal time limit. The file was examined, and the following was considered:
The plaintiff’s counsel stated that the client worked at the defendant’s workplace between May 2002 and 29.06.2012; that on 28.06.2012, during dinner hours, the client was accused of “looking through the window into the female employees’ locker room”; and upon the client’s rejection of the accusation, he was dismissed without compensation. Thus, the counsel requested the collection of severance and notice pay receivables from the defendant.
The defendant’s counsel stated that the plaintiff worked at the client’s workplace since 01.05.2002; and the employment contract was terminated for just cause pursuant to Article 25/II (c) of the Labor Law due to “disturbing, offensive, and immoral behavior toward female employees working at the workplace,” and requested the dismissal of the lawsuit.
The local court decided to accept the lawsuit on the grounds that: “…the fact that [Witness A] and [Witness B] identified the person they saw behind the frosted glass and from a side profile by a scanned passport photo from 2002 pasted into a Word document in the manager’s office, and the employer’s failure to properly separate male and female locker rooms and toilets, made the dismissal of the plaintiff unfair.”
There is a dispute between the parties as to whether the termination of the employment contract was based on just cause.
In the concrete case, the plaintiff employee claimed that the employment contract was terminated without just cause, while the defendant employer argued that the contract was terminated for just cause.
In the specific event subject to termination, the defendant employer’s employees, [Witness A] and [Witness B], alleged that the female locker room was spied on by the plaintiff. The plaintiff argued that no such event occurred. However, the employees named [Witness A] and [Witness B], who made the complaint, stated that the person spying on the locker room was the plaintiff, both in their complaint to the employer and during the discovery (keşif) conducted by the court. There is no hostility between the aforementioned individuals making these allegations and the plaintiff that would require them to commit slander. The act in question must be accepted as sexual harassment by an employee against another employee of the employer, and it should be concluded that the employment contract was terminated by the employer for just cause, leading to the rejection of requests for severance and notice pay. The court’s decision to accept the claims based on the written justification was erroneous and required a reversal.
Therefore, the appeal objections of the defendant’s counsel aiming at these aspects must be accepted, and the judgment must be overturned.
CONCLUSION: It was unanimously decided on 10.11.2014 that the appealed judgment be OVERTURNED for the reasons written above, and the advance appeal fee be returned to the defendant upon request.