ABSTRACT: Employees have to use employer’s machinery, tools and equipment, technical systems, facilities and vehicles duly and pay attention to them. Failure of the employee to pay due attention to his/her job may result to many disciplinary penalties, from warning to dismissal to be imposed. If a damage has been caused as a result of carelessness, the employer may request compensation from the employee within the framework of certain rules. Claiming the damage from the employee depends on the proof of the damage. In its decisions, the Court of Cassation seeks to the damage occurred due to the employee’s failure to do what he/she should do, the net amount of the damage, and who is responsible for the performance of that job.
Even if there is a damage caused by the employee to the employer, compensation from the employee is subject to various rules. It is unlawful for the employee to directly deduct the damage caused to the employer from the employee’s wages. Direct deduction is only possible if the employer sues and proves that the employee has deliberately caused this damage. If there is no deliberate damage or if the employer has not filed a lawsuit even if it was done deliberately, deductions can be made from the employee’s wages only after the employee’s written consent is obtained.
Pursuant to the regulation in the 2nd paragraph of Article 407 of the Code of Obligations; “…The employer cannot exchange his receivables from the employee and his wage debt without the consent of the employee. However, the receivables caused by the employee deliberately and arising from a fixed damage with a judicial decision can be exchanged in the amount of the seizable portion of the wage…” Pursuant to the aforementioned provision of the law, in order to deduct from the wages of the employee, a judicial decision must be made in this regard or the employee must give written consent to the deduction from his/her wage. Considering that the provision is mandatory, all agreements made in violation of this provision will be void. In addition, Article 35 of the Labour Law; It is regulated as “…More than one fourth of the monthly wages of the employee cannot be seized or transferred or assigned to another person…” Pursuant to this regulation, even if deductions can be made from the wages of the personnel in accordance with the written consent or the Court decision, in this case the deduction cannot exceed ¼ of the wage of the personnel.
If it is determined that the damage was caused by the employee after the damage and the employee accepts this, the issues to be done in consideration of the Supreme Court Decisions are as follows:
- First of all, the damage should be determined
- The defect rate of the employee who caused the incident to occur should be determined (It should be determined by a committee to be formed by occupational safety experts.)
- It should be determined whether the damage exceeds the 30-day wage of the employee and the cases where the damage exceeds the 30-day wage of the employee allows the employer to terminate the employment contract with just cause.
In determining whether the employee is responsible for the damage and whether there is any damage that will terminate the employment contract, the above issues should be carefully examined and action should be taken accordingly.
As we mentioned above, pursuant to the article 25/2-i of the Labour Law No. 4857, In the event that “the worker causes damage and loss to the extent that he cannot pay the amount of his 30-day wage, because of his own will or negligence, the machines, installations or other goods and materials that are or are not the property of the workplace are at hand.” The possibility of termination of the employment contract with just cause will be on the agenda. Although there is no clarity on whether the 30-day wage to be taken as a basis in the Labour Law No. 4857 is gross or net wage, the Supreme Court decisions establish that the gross wage should be taken as a basis in accordance with the principle of interpretation in favour of the employee.
In the 26th article of the Labour Law No. 857, “The authority to terminate the contract granted to the employee or the employer based on the situations that do not comply with the moral and goodwill rules indicated in the articles 24 and 25, it cannot be used after six working days, starting from the day when one of the two parties learns that the other party has acted in such a manner, and in any case, one year after the realization of the act. However, the one-year period shall not be applied if the employee provides material benefit in the event.” Accordingly, the one-year final term will begin with the realization of the event that caused the damage. The six-day period will begin with the determination of the amount of damage and notification of the termination to the competent authority.
In the damage caused to the employer by the employee, there must be a fault or negligent act or intent. However, if the employer did not take occupational safety measures, did not provide the necessary materials or did not provide training, these also affect the fault of the employee.
As a result, if the employer suffers a loss due to the faulty action of the employee and terminates the employment contract with just cause in accordance with clause 25/2-ı of the Labour Law; The employee will not be entitled to severance and notice pay.
Damla Davran Işlak
Attorney at Law