General Assembly of the Law 2016/2628 E. , 2018/103 K.
“Text Of Jurisprudence”
TRIBUNAL : Employment Tribunal
Dec The end of the trial held due to the case of “labor receivables” between the parties; Ankara 12. The day 02.04.2015 and 2014/158 E, which were issued by the Labor Court on the refusal of the case., 2015/240 K. upon the request of the deputy plaintiff to examine the decision numbered on appeal, the Supreme Court of Cassation 22. The Law Department has 18.06.2015 days and 2015/15217 E, 2015/20942 K. by his numbered decision;
“…The deputy plaintiff, the plaintiff, that the defendant works in the company, Capital Natural Gas Distribution Inc.Sh.that 100% of the public shares in the capital of have been privatized through privatization, … Gıda San. Tic. A.Sh. with the share sale agreement that was signed after the privatization, the company was terminating their employment contracts in their favor by the authorities of the law on civil servants for the purpose of 657 4/C in order to enable to benefit from The “without prejudice to my legal rights under due to privatization Law No. 4046 all 4/C status I want to move to” form signed a petition is received that does not reflect the truth of the petition, notice was taken under duress and clothing along with their interest rates by declaring that the defendant pay receivables assistance from his education he wanted.
The defendant’s deputy; stated that the plaintiff terminated the employment contract at his own request and will, left the job by submitting a signed petition, his legal rights were paid, and requested the dismissal of the case.
As a result of the privatization of the defendant company by the court … Gıda ve San. and tic. A.Sh.’what the occurrence, prior to transfer, and subsequent six-month period, under the scope of privatization within one month following the date of termination law workers 657 sayılı kanunun 4/C demand of the plaintiff announced to workers and passing under the offer, the plaintiff’s 4/C wanted to go to with a signed statement reporting, the notification period by using 4/C request renew coverage for the transition to the disclaimer signed as of the date of the lawsuit 4/C continues to work in other public institutions under, in order for the employee to qualify for notice compensation, the employment contract must be terminated by the employer for an unfair and valid reason, there is no job search when transferring from public workplaces to other public workplaces, there can be no question of paying notice compensation, since dec claimant requests transfer with his free will, there are no conditions that will require notice compensation, in the beginning of November, in advance of clothing assistance and assistance for the year that will work in the same workplace will be provided, and before and for the second time, the plaintiff who requested a transfer was decided to dismiss the case on the grounds that the claimant’s clothing assistance request for the next year was not in place.
The decision has been appealed by the plaintiff within the legal period.
1-According to the evidence collected from the articles in the file and the legal reasons on which the decision is based, the plaintiff’s appeals that fall outside the scope of the following paragraph are not valid.
2-There is a dispute between the parties in terms of notice periods and notice compensation. dec.
In general, the ”right of termination” is a right that gives the right to immediately or after a certain period of time to eliminate the employment contract with a unilateral statement of will that must be directed to the counterparty, which gives rise to disruptive innovation. 24 of the Labor Code No. 4857 on the immediate termination of an employee’s employment contract for a justified reason. it is regulated in the article. The legal regulation of the notice of termination of the employee’s term is 17 of the same Law. it is discussed in the article. In addition, the law does not specifically regulate the resignation of an employee. Termination of the employment contract by the employee without relying on a justified reason and without giving a notice period should be considered a resignation. The business relationship ends when the will to resign reaches the other party. Although the acceptance of the resignation by the employer is not mandatory, there can be no real resignation if the petition has not been processed by the employer and the employee continues to work at the workplace. However, in the event that, despite the resignation, the parties’ will to work for a certain period of time converges, it should be recognized that the employment contract ends by substitution at the end of the agreed period. Conditional resignation, as a rule, does not apply. As is most common in practice, a request to leave should be considered not as a resignation, but as an obligation to enter into a substitution (termination agreement), provided that the employee’s rights to notice and severance pay are paid. Although this type of termination is not included in the Labor Code, a statement (icap) containing a contract for mutual termination of an employment contract that one of the parties has communicated to the other party, followed by a contract for cancellation (ikale) with the acceptance of the other party, is established. In the termination agreement, icapta is directed to terminate the business relationship by agreeing with the appropriate statement of will of the counterparty. For this reason, the obligation to enter into an substitution agreement cannot be considered a termination and guaranteed termination. Although it is possible for each of the parties to terminate the business relationship with a statement that has a disruptive effect, it is also necessary to focus on the reasons why they end it by mutual agreement by not going down this path. First of all, there must be a reasonable benefit for the person who has entered into a non-disclosure agreement. In addition, the conditions specified in the execution must be accepted by the counterparty in the same way in order to establish a non-disclosure agreement. If the will of the parties does not unite in the direction of termination and its consequences, intervention cannot be mentioned. Likewise, after one party declares its will to terminate the contract, it does not mean that the other party agrees to go directly to terminate the contract.
On the other hand, Article 21 of the Law No. 4046 on Privatization Practices. in the article “According to this Law, organizations (except subsidiaries) that are included in the scope of privatization are prepared for privatization, privatization, reduction or partial or complete cessation of their activities, temporary or indefinite closure or liquidation due to; in these organizations on the basis of employment contracts an employment contract for a fee from employees labor laws and collective bargaining agreements that are subject to those who ended up to be entitled to compensation in accordance with the law and applicable collective bargaining agreements, except for loss of business resulting from such compensation shall be paid for in addition to compensation” includes the provision of.
According to the contents of the file, at the end of the privatization practices of the defendant’s workplace … Gıda San. Tic. A.Sh.’what may Where were privatized by the defendant after the privatisation of the Council of Ministers of public institutions at 4/C status being reminded of their right to work within six months from RPM to transfer, upon the customization of the plaintiff due to their use of the period of notice, severance pay and collective bargaining agreements arising from the business relationship that will be without prejudice to the rights arising under the Law No. 4046 up to date 4/C then that is trying to get the status reporting, due to the transfer of employment to a reduction in the workplace on how to go legal rights arising from the registration and payment and retain all rights to collective bargaining agreements on the condition that the priority given to it want to be the employer of the defendant on these claims, the company terminated the plaintiff’s employment contract due to the labor needed to privatisation by specifying, without prejudice to the statutory rights of the plaintiff signed a collective bargaining agreement and it is understood that the acquaintance.
In a concrete case, the plaintiff’s public institutions, 4/C, while reserving their rights to collective bargaining and legal work under an employment contract and termination of the termination in the direction of the conditional prompt directly by itself because it does not exist nor will to the convention on the description of destruction of a will resigned as described (icap), since the termination will be treated as. The plaintiff has reserved his rights arising from the legal and collective bargaining agreement. The defendant has not paid notice compensation. In this case, it cannot be concluded that the solution has been accepted in the direction of the cancellation agreement. Because the wills of the parties in the direction of the termination agreement are not united in the direction of termination and its consequences. It cannot be said that the employment contract was terminated by both parties by resignation of the plaintiff or by substitution.
Article 21 of the Law No. 4046 of the plaintiff’s employment contract by the defendant employer. 21 of the Law No. 4046, which was terminated without a period of time in accordance with its article. “… in these organizations, on the basis of an employment contract, employees who have terminated their employment contracts in such a way that they are entitled to compensation in accordance with the labor laws and collective bargaining agreements to which they are subject, ….” in the face of open regulation, it is obvious that the plaintiff’s employment contract must be accepted by the employer in accordance with the labor laws and collective bargaining agreements to which they are subject, in order to qualify for notice compensation, while the General Assembly of the Supreme Court of Law dated 14.01.2015 and based on 2013/22-2033, when taken into account in decision 2015/31, it is contrary to the procedure and the law to decide to reject the notification compensation instead of accepting it and it requires to disrupt it…”
at the end of the retrial, the court resisted the previous decision by overturning the decision on the grounds that the file had been reversed instead of reversed.
DECISION OF THE GENERAL ASSEMBLY OF JURISPRUDENCE
After it was understood that the decision to resist was appealed during the examination by the General Assembly of the Law and the documents in the file were read, the requirement was discussed:
The case is related to the request for collection of labor receivables.
His client work on the plaintiff’s attorney defendant of the contract by the employer 18.11.2013 “due to the privatisation of the employment of the company were required to” where was dissolved by justifying if in accordance with the provisions of the collective agreement for a period of 15 weeks of notification is not given to the issue as a 15-week period, corresponding to the fee hadn’t been paid as advance notification defendant who did not comply with the requirement of the company is obliged to pay compensation in the amount of the fee for the period of notice, claiming that there are also receivables arising from the collective bargaining agreement, he demanded that the collection of labor receivables be decided.
The defendant’s deputy defended the dismissal of the case by stating that the plaintiff’s employment contract was terminated in accordance with the petitions submitted to his client, the plaintiff was not entitled to notice compensation, and there was no receivable.
From the documents filed by the court, the defendant is the result of the privatization of the employer … Gıda ve San. and tic. A.Sh.’what the occurrence, within the scope of privatization workers 657 sayılı kanunun 4/C demand and scope of the offer announced to workers of switching to the plaintiff, the plaintiff’s 4/C wanted to go to with a signed statement reporting, notification issue by using 4/C request renew coverage for the transition to the disclaimer signed as of the date of the lawsuit 4/C continues to work in other public institutions under the plaintiff’s termination indemnities in order to qualify for a valid reason of an employment contract by an employer for unfair and should be terminated, public establishments in workplaces and other public job search is not out of the question one’s own compensation or reimbursement, termination of an employment contract the plaintiff the choice of the date of transition to other public institutions reported along with the possibility of, after a 4/C where the transition coverage request is accepted, the worker that was provided to search for the business or held for the duration of the conditions that occur because it does not require compensation for the plaintiff’s where you request transfer freely indefinite-term employment contracts in the risk of job loss are always a possibility resides in, the workplace is also where the plaintiff made a demand for the transition to public, business and the public to demand compensation against the law to replace both seen, otherwise it will lead to unjust enrichment, the clothing with the help of the employment contract, collective laid out in advance at the beginning of the month of November in the year prior to working in the same workplace and made for the coming year and the second transmission request the help of the plaintiff’s demand on the grounds that it did not have the help of clothing is also in place, the case is dismissed.
Upon the appeal of the plaintiff’s attorney, the judgment was overturned by the Special Department on the grounds described above.
Many cases have been filed with the Ankara Employment Courts on the same issue by the court, Ankara 9. In the case file No. 2014/233 of the Labour Court, Ankara 1. In the case file No. 2014/2551 of the Labour Court, Ankara 19. In the case file No. 2014/39 of the Labour Court, Ankara 15. The decision to resist was made on the grounds that the decisions made in the Employment Tribunal’s case file No. 2014/51 were upheld by the Supreme Court and that there should be a decisiveness between the decisions made in the same cases that are the subject of the case because the Supreme Court is a case law court.
The decision to resist was appealed by the deputy plaintiff.
The dispute that comes before the General Assembly of Law through resistance is brought to the point of whether the plaintiff’s employment contract is terminated by the plaintiff’s employee through resignation, whether the parties are terminated by agreement through a substitution agreement, or by the defendant’s employer, according to the result to be reached here, the plaintiff may be entitled to notice compensation.
Reasons for termination of an employment contract to the death, and termination of fixed term contracts in this time appears to be over, while 1475) was enacted on 15 March 2003, amending the Act No. 4773 law occupational job security provisions and, in particular, with the okay of the labour contract 4857 after termination of the cause have been widely used as an expiration.
For this reason, it is useful to explain the substitution agreement.
Termination of the employment contract by agreement of the parties is not regulated as a reason for termination, nor is it defined in the Turkish Code of Obligations No. 818 and the Turkish Code of Obligations No. 6098 as a type of contract that terminates the contract. For this reason, the substitution contract regulation, which is defined and regulated as a special type of contract, is not included in our legislation. Although there is no legal definition of a contract and the legal relationship established by this contract, the Mutual will of the parties within the scope of freedom of contract with a new contract based on the elimination of destruction, disruption to the convention in relation to it (okay) is defined as the agreement of (Primed, M.: Ikale in Labor Law, Ankara 2013 p. 6).
Due to the fact that it is a contract, the general provisions of the Turkish Code of Obligations governing contractual debt relations also apply to the ikale agreement. The contract of substitution is established by mutual and appropriate statements of will of the employee and the employer, who are parties to the contract. The one that precedes these declarations of mutual will in time is called icap, and the second is called acceptance. In order for the contract to be established as valid, the wills of the parties must be mutual and in accordance with each other. This conformity should be on all objective and subjective points of the contract. The objective main point of the substitution agreement is the elimination of the breakdown of the employment relationship by agreement on a certain date (Astarlı, age, p. 53). If the parties have agreed on the main points of the contract, the contract is considered to have been established, even if the points have not been focused on in the second degree (TBK m. 2/f.1). The points that are not the basis of the Contract are secondary side points (Kocayusufpaşaoğlu Necip, Kocayusufpaşaoğlu / Hatemi/Serozan /Arpacı, General Section of the Law of Obligations, Volume One, Legal Transaction, Contract, Istanbul, 2010, p.176). The parties can agree on the main points of the contract, exclude the second-degree side points from the negotiation and establish a contract, as well as convert the second-degree side point into a mandatory condition of the contract. It is not possible to establish a substitution contract for a party without understanding this issue, which has become a subjective point of the contract for the party (Astarli, age, p.57).
By the way, it is useful to briefly mention the termination, which is one of the reasons for terminating the employment contract.
As is well known, a statement of the unilateral termination notice and this statement will be an indefinite-term employment contracts can be used to terminate the agreement by giving a specific time or indefinite-term contracts based on the justification of, is used to terminate without notice any time by the employee or the employer. Therefore, in employment contracts, the notice of termination is a unilateral statement of will that must be addressed to the counterparty who terminates the contract with the expiration of a certain period of time or immediately, resulting in it reaching the addressee. The right to notify of termination in employment contracts, as a rule, was granted to both parties. Due to its legal nature, the notice of termination is a right that gives rise to innovation, so there is no need to accept the opposite party, as it will result in the statement reaching the opposite party. Since the employment contract will end with a notice of termination, which is the use of a right that causes disruptive innovation, the notification must be made in a specific and clear way. Therefore, it is necessary to clearly understand from the notification the desire of the party notifying of termination to terminate the contract. For this purpose, statements in the form of an offer or a question in which the will to terminate the contract is not clearly understood cannot be considered a notice of termination (Çelik, N.; Business Law Courses, Beta, 26. Basi, Istanbul 2013, p. 205).
Notice compensation arising as a result of termination is a compensation that the party that terminates the indefinite-term employment contract without a justifiable reason and without giving due notice must pay to the counterparty. Accordingly, firstly, if the employment contract has been terminated without relying on the reasons written in Articles 24 and 25 of the Labor Code No. 4857 and the notice has not been duly notified as specified in Article 17 of the Labor Code No. 4857, notice compensation must be paid.
In the event the concrete is evaluated in the light of these comments, the defendant is subjected to as a result of the privatization process of the Company, date and 20.10.2004 25169 published in the Official Gazette numbered, 2004/7898 involved in the decision to the Council of Ministers of the privatization date denounced those who were within six months of the employment contract by the private sector, within thirty days after termination, the person or company through privatization administration in the case to apply the law on civil servants of 657 4/C in order to benefit from a scheme can be employed within the scope of the plaintiff and the Defendant dated 12.11.2013 petition given to the company within the period of severance pay under the collective bargaining agreements without prejudice to the rights arising from the Law No. 4046 4/C that is trying to get the status of a reported clause, the defendant addressed the plaintiff in the article titled ”notice of termination notification“ and dated 18.11.2013 “..your dated petition has been examined and your employment is not needed due to the privatization of our company. For this reason, it has been decided that this notice of termination of your employment contract will be terminated as of the date of notification to you..” he gave his statements and the mentioned notification was notified to the plaintiff on the same date.
On the other hand, the hebrew dated 14.12.2013 in the file was signed by the plaintiff as a result of the collective bargaining agreement and also with all legal rights reserved, and 32 (21 of Law No. 4046 as the code of dismissal in the statement of dismissal of the plaintiff. according to the article, termination due to privatization) has been reported.
The plaintiff’s petition to the respondent employer, reserving his rights to work under 4 /C, is an icap for the termination of the employment contract by substitution (termination agreement). Considering that the contract was terminated with the notice of termination sent to the plaintiff by the defendant employer, but no notice compensation was paid, the existence of a cancellation agreement cannot be mentioned due to the fact that the will of the parties to pay notice compensation did not match.
On the other hand, since the plaintiff has also not made a statement of will that he directly terminated the employment contract himself, it cannot be concluded that the employment contract was terminated by the plaintiff’s employee by resigning.
In a statement given to the defendant by the employer departure from the Social Security Institution and labour due to the expiration of the contract, which is shown as item is included in the law on privatization of the 21st No. 4046 “…in this organization on the basis of employment contracts an employment contract for a fee from employees entitled to compensation in accordance with labor laws and collective bargaining agreements that are subject to be ended ones,” open editing in the face of the plaintiff’s employment contract in accordance with labor laws and collective bargaining agreements that are the subject of, it is necessary to accept that it has been terminated by the employer in such a way as to qualify for notice compensation.
As a matter of fact, the General Assembly of the Law dated 14.01.2015 and dated 2013/22-2033 E., 2015/31 K. the same conclusion was reached in his decision No.
As such, the decision to disrupt the Special Chamber adopted by the General Assembly of the Law must be followed, while resisting the previous decision is contrary to the procedure and the law.
The decision to resist for the reasons described must be overturned.
CONCLUSION: It was decided unanimously on 24.01.2018 that the decision of the plaintiff’s deputy to resist the acceptance of appeals would be OVERTURNED for the reasons shown in the decision of the Private Office to overturn, if requested, the advance fee of the appeal would be returned to the depositor, the decision would be closed to correct the decision.
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