REPUBLIC OF TURKEY SUPREME COURT
22nd Civil Chamber
Case No: 2016 / 11845
Decision No: 2016 / 14174
Decision Date: 10.05.2016
INVALIDITY OF TERMINATION AND REINSTATEMENT CASE – TERMINATION OF EMPLOYMENT CONTRACT OF THE PLAINTIFF, WORKING AS AN ASSEMBLY WORKER, ON THE GROUNDS OF SMOKING IN THE WOMEN’S TOILET – EMPLOYEE ENDANGERING WORK SAFETY DUE TO HIS OWN WILL AND NEGLIGENCE – TERMINATION FOR JUST CAUSE
SUMMARY: In this specific case, the defendant employer terminated the plaintiff employee’s employment contract for just cause based on the reason that “the employee endangered work safety due to his own will and negligence…” While it should be accepted that the termination was invalid, the court’s ruling regarding the invalidity of the termination and the acceptance of the request for reinstatement should be overturned and annulled.
(Law No. 4857, Articles 20, 25, 28)
Case: The plaintiff requested a ruling declaring the termination invalid and ordering reinstatement.
The court partially granted the request.
The defendant’s lawyer appealed the judgment within the prescribed time limit. The file was examined, and the matter was discussed and considered:
Decision: The plaintiff’s attorney stated that the plaintiff, who had been working as an assembly worker at the defendant’s workplace since September 4, 2007, had his employment contract terminated by the defendant employer on March 23, 2015, effective March 27, 2015, on the grounds that he smoked in the women’s restroom at the workplace, pursuant to Article 25/II-ı of Law No. 4857. The plaintiff requested that the termination be declared invalid on the grounds that the reason for termination, as stipulated in the relevant article, was “endangering workplace safety due to the employee’s own will and negligence,” and that the termination was unlawful because the reason for termination did not reflect the truth. The plaintiff also requested reinstatement, compensation for four months’ wages for the period of unemployment, and, if the employee is not reinstated despite applying to the employer, compensation for non-reinstatement, to be determined as no less than four months’ wages.
The defendant’s attorney argued that the plaintiff, having worked at the defendant’s workplace for seven and a half years since September 4, 2007, was well aware of the rules and regulations regarding smoking in the workplace. They further stated that smoking was prohibited in all areas except the canteen, and this was communicated to all employees during initial training and periodic occupational health and safety training, and was reiterated with warning signs, as every poorly extinguished cigarette butt posed a fire risk in the workplace. The defendant company requested the dismissal of the case, stating that the plaintiff was seen smoking in the restroom by the defendant company’s occupational health and safety expert, D. T., who personally witnessed the incident, prepared a report, and took the plaintiff’s statement. The defendant further stated that the plaintiff’s employment contract was terminated immediately and without compensation by a majority vote of the disciplinary board on the grounds that the plaintiff clearly violated workplace rules and regulations and endangered workplace safety.
The court ruled that the termination by the defendant was invalid, accepted the plaintiff’s request for reinstatement, and ordered the payment of wages and other entitlements accrued during the period of unemployment, up to a maximum of four months, and compensation for failure to reinstate, determined as four months’ gross wages.
The judgment was appealed by the defendant’s attorney.
According to the case file, it is understood that the employer had already implemented the smoking ban by posting warning signs and notices throughout the workplace, including the restrooms. Furthermore, it is widely known that smoking in enclosed spaces is a violation of the law. Furthermore, Article 39 of the internal regulations, which is an annex to the collective bargaining agreement between the employer and the trade union to which the employee belongs, states that smoking, using matches or lighters, and entering areas marked with “no smoking” signs with cigarettes, fire, or flammable and explosive materials are grounds for dismissal. Therefore, the court’s decision to reinstate the plaintiff based solely on the fact that the only place where smoking was permitted was the toilet, and that the toilets were tiled, is erroneous. Moreover, as evidenced by the statements of the defendant’s witness, who is an occupational health and safety expert, considering the proximity of the toilet to the production areas and the flammable nature of the materials present, it must be accepted that smoking posed a danger to the entire workplace and occupational safety.
For all these reasons, in the specific case, it should be accepted that the defendant employer terminated the plaintiff employee’s employment contract for just cause based on the reason “the employee endangering the safety of the workplace due to his own will and negligence…” as stated in Article 28, paragraph 2, subparagraph (ı) of the Labor Law No. 4857. Therefore, the court’s judgment regarding the invalidity of the termination and the acceptance of the reinstatement request should be overturned and annulled, and a decision should be made as follows, in accordance with Article 20, paragraph 3 of Law No. 4857.
Result: For the reasons explained above;
1- The court’s decision dated and numbered above is hereby overturned and annulled,
2- The case is DISMISSED,
3- Since the court fee was paid in advance, there is no need for further payment,
4- The plaintiff’s litigation costs shall remain with the plaintiff, and the defendant’s litigation costs of 153.00 TL shall be collected from the plaintiff and paid to the defendant,
5- In accordance with the tariff in effect on the date of the decision, 1,800.00 TL in attorney’s fees shall be collected from the plaintiff and given to the defendant,
6- The appeal fee paid in advance shall be returned to the defendant upon request, This decision was made unanimously on May 10, 2016.