DISCIPLINARY LAW
There is no general regulation regarding disciplinary law and disciplinary institution in Turkish Law legislation. However, some provisions regarding disciplinary punishment are included in the Labor Law and the Code of Obligations. The gap created by the lack of a general regulation is generally filled in practice by collective labor agreements. Again, it is also possible to regulate disciplinary punishments with internal regulations. Disciplinary punishments can also be regulated with labor contracts. The absence of general principles has increased the importance of court decisions. Court decisions are in a nature that directs disciplinary law.
Purpose and Legal Basis of Disciplinary Law
Disciplinary Law ensures order, organization and discipline in the workplace. At the same time, the limits of disciplinary punishments are determined by Disciplinary Law. The purpose of disciplinary law is to ensure peace and tranquility in the workplace. Every punishment must have a legal basis. Therefore, the disciplinary punishments to be given must also have certain basis. However, it cannot be expected that a separate instruction will be fulfilled according to the law. Therefore, it is not lawful to give a disciplinary punishment on the grounds that an unlawful instruction is not fulfilled.
Disciplinary penalties
Disciplinary penalties can be listed as warning, reprimand, wage deduction and dismissal.
Reprimand, which is considered more severe than warning and warning, is an invitation to be careful due to the employee’s behaviors that violate workplace discipline.
Since wage deduction penalty is regulated in labor law, the employer cannot give this penalty for reasons stated outside the employment contract. Deductions made from wages must be notified to the employee immediately in writing. The deducted wage is deposited into the account of the Ministry of Family, Labor and Social Services within one month from the date it is deducted. Dismissal penalty is the most severe disciplinary penalty. This sanction has both legal and disciplinary characteristics.
General principles
Proportionality principle
Disciplinary penalties must be proportionate. Each concrete incident must be evaluated separately. Nevertheless, attention must be paid to proportionality.
Equal treatment principle
If more than one employee caused the incident that is the subject of the Disciplinary Board’s disciplinary investigation, the employer is obliged to take equal action for each of them. Precedent penalties are important in disciplinary investigations. This situation is also carefully evaluated by the judicial authorities. Therefore, the stability of the disciplinary board decisions is important.
The principle of termination as a last resort
A disciplinary board must take into account the principle of termination as a last resort when making a decision. Any decision made without this will be against the law. For example, if the employer terminates the employment contract of unionized workers with the intention of ensuring peace in the workplace, it is against the principle of last resort and therefore also against the law. What is expected from the employer is not to choose to terminate the employment contract if it is possible to achieve the desired result by a means other than termination of the employment contract.
The principle that a single action requires a single punishment
It is against the law to impose more than one punishment for an employee’s behavior that disrupts discipline.
Disciplinary investigation
A disciplinary punishment can only be given after a disciplinary investigation. The employee must work while the disciplinary investigation is ongoing, but in some cases, the employee may be temporarily suspended.
It is mandatory to obtain the worker’s defense within the scope of the investigation. A letter of invitation to defense must be served to the worker. The behavior that violates discipline must be clearly stated in this letter. If the worker cannot be present at the specified place and time in a suitable time, it is also possible for him to give a written defense. If he does not appear at the specified place and does not give a written defense, he must be informed that he will be deemed to have waived his defense.
Repetition
The situation where a worker violates workplace discipline more than once is called repetition. In this case, the penalty to be given should be a higher penalty. Events that occur in a very short period of time are considered a single action and therefore the application of penal practices related to repetition will be against the law.
Evaluation of evidence
All documents and evidence must be included in a disciplinary investigation file. This is mandatory. If evidence that justifies the disciplinary penalty is not presented, the penalty may be annulled. A criminal case opened against the worker may also be included among the disciplinary investigation evidence, but in some cases, the criminal file does not bind the disciplinary investigation. The acquittal decision may not mean that the worker is cleared of disciplinary charges. Because even if the worker’s behavior does not constitute a crime in terms of criminal law, imposing a disciplinary penalty on him may be considered lawful in terms of disciplinary law. The evidence in the investigation must be obtained in a lawful manner. Otherwise, the evidence cannot be used.
Limiting periods of rights
Article 26 of the Labor Law No. 4857 introduces important regulations regarding the right of the employee and employer to terminate the employment contract for justified reasons and the period of use of this right. The right to terminate the contract is granted to the parties who act contrary to the rules of ethics and good faith specified in Articles 24 and 25 of the Law. However, this right of termination can be used within a certain period of time. Exceeding these periods renders the right of termination invalid. Article 26 of the Labor Law states that the employee or employer must exercise their right to terminate the employment contract within six working days after learning of the act. In addition, if one year has passed since the act occurred, the right of termination is lost. If there is a disciplinary board in a workplace, the incident must be reported to the disciplinary board in order to exercise the right of termination. At this stage, the inspector investigation to be conducted regarding the incident will not cause the termination period to start. However, the documents and evidence obtained as a result of the investigation process play an important role when the issue is brought to court. If the disciplinary board decides on termination, the employer must implement this decision within six working days. The period until the disciplinary board’s decision does not prevent the termination period from running. In some cases, the damage must be determined in order for the employer to exercise the right to terminate. For example, if the safety of the workplace is endangered due to the employee’s own fault or negligence or if the employee causes great damage to the materials belonging to the workplace, this situation constitutes a justified reason for termination for the employer. For such a termination, the six-day period begins after the damage is determined and the right to terminate must be exercised within this period. The one-year period also begins to run from the date the damage occurred.
Disciplinary Board
In practice, the Disciplinary Board usually consists of an odd number of people. In the event that the board is formed by an even number of people and there is an equal vote, the vote of the chairman is counted as two votes and the decision is made. It is against the law for the board to require unanimous decisions. The disciplinary board makes decisions about all employees; whether the employee is a union member or not does not cause any discrimination.
In some cases, it is also important to determine whether there is a legal impediment to certain penalties. For example, the employer cannot change the workplace of the union representative without written consent. Therefore, it is not possible to change the workplace of the union representative as a disciplinary punishment.
Employment contracts may impose certain limits on the employer’s freedom to terminate the employment contract. In this context, the employer’s right to terminate may be limited to seeking a disciplinary board decision. However, it is not possible to completely eliminate the employer’s right to terminate.
Dismissing the employee without holding a meeting in accordance with the Disciplinary Board procedure or without meeting at all does not make the termination of the employment contract unjust in itself, according to the current jurisprudence of the Supreme Court. In the event that the dispute is brought to court, the valid termination conditions must also be investigated.
An employee whose employment contract is terminated by a disciplinary board decision may apply to the courts for review of the decision, and it is possible to file a lawsuit for the annulment of the disciplinary board decision. In these cases, labor courts are competent, and the competent court is the court of the place of residence of the real or legal person on the date the case was filed and the court of the place where the work was done.
The disciplinary board investigation report and the termination letter must have the same content.
Any subsequent change of the termination letter is legally invalid. Since there is no clear regulation in Turkish law other than the termination of the employment contract, a decision cannot be made to cancel the disciplinary penalty and for the employer to take action in this direction, and the court makes a determination that the action is erroneous.
Disciplinary Board in Joint-Stock Companies
In joint-stock companies, the disciplinary board functions as a body established to supervise the behavior of employees in the workplace, to take penal actions in case of disciplinary violations and to make decisions on the sanctions to be applied by the employer. However, there is no legal obligation for the establishment of a disciplinary board in joint-stock companies. However, in order to ensure the internal order of the workplace, companies can establish a disciplinary board according to their own internal statutes or regulations. The decision taken by the Board of Directors is recorded in the decision book. In joint-stock companies, the establishment of a disciplinary board is usually made by the decision of the board of directors. The board of directors may decide to establish a disciplinary board in accordance with the company’s internal regulations and work order. This decision is shaped according to the company’s operation and needs.
Functioning of the Disciplinary Board
Meetings: The disciplinary board usually meets at certain intervals to evaluate violations. Depending on the magnitude and seriousness of the violation, the disciplinary board may also hold an emergency meeting.
Decision Making: The disciplinary board may decide unanimously or by majority vote. The board determines the appropriate punishment according to the type of violation.
Fair Trial: The disciplinary board must follow a fair process in order not to violate the rights of employees and treat each employee equally. The employee’s right to defense must always be taken into consideration.
PRACTICAL IN TERMS OF JOINT STOCK COMPANIES
The disciplinary board is a body established to ensure discipline in the workplace and also serves to protect the operational efficiency and internal order of the company.
Applying appropriate sanctions against disciplinary violations ensures that employees comply with the rules and increases productivity in the workplace. A disciplined environment helps the company’s operations to operate uninterruptedly and efficiently.
The image of the company to the outside world depends on its internal order and discipline. Disciplinary violations can harm the company’s way of doing business. The disciplinary board helps prevent such situations and protects the company’s reputation.
If employees do not comply with the safety rules in the workplace, the legal risks that the company may face may increase. The disciplinary board prevents safety violations and ensures that the company both fulfills its legal obligations and ensures the safety of its employees.
The disciplinary board must treat all employees equally and make its decisions only within the framework of the rules in the workplace and objectively.
Every decision taken by the disciplinary board must be in accordance with the Labor Law No. 4857 and other relevant legal regulations. Legal responsibilities must be fulfilled by taking into account the provisions regarding employee rights and termination procedures.
The termination decisions made by the disciplinary board can be legally appealed by the employees. Unfair termination cases may cause the employer to have to pay compensation. Therefore, before serious penalties such as termination are given, the magnitude of the violation, the employee’s past performance and the company’s interests should be carefully evaluated.
The disciplinary board should transparently determine the company’s penal policy regarding when and under what circumstances penalties will be given.
The disciplinary board should work in accordance with the company’s internal regulations. This not only ensures compliance with the law, but also ensures that decisions are made that do not hinder the company’s operation. Internal regulations clearly determine the procedures for disciplinary violations, so that there are no disruptions in the company’s operation.
The penalties given by the disciplinary board can create a learning opportunity for employees. Clearly defining the rules in the workplace and training employees according to these rules strengthens the company’s disciplinary system in the long term and helps prevent possible violations.
The work of the disciplinary board requires open and honest communication with employees. This ensures that the company is better understood by employees and helps resolve potential disputes. Healthy communication will increase peace and efficiency in the workplace.
The termination decisions made by the disciplinary board may be considered unfair termination by the employee. In the event of unfair termination, the employer may have to pay compensation.
Violating the employee’s right to defense may increase the employer’s legal liability. In addition, such situations may damage the employer’s reputation.
The penalties imposed by the disciplinary board must comply with the Labor Law and other legal regulations. Otherwise, the employer may be held criminally liable. For example, when determining penal policies, elements such as collective labor agreements or union rights should not be ignored.
The disciplinary board’s excessively harsh and constant application of penal sanctions may create distrust among employees. Employees may feel that they are in an environment where they are constantly being monitored and punished, which may negatively affect their motivation and loyalty.
The disciplinary board may sometimes strain the relationship between employees and employers due to insufficient communication and lack of explanation. If employees do not find the disciplinary board’s decisions fair or transparent, this may negatively affect productivity in the workplace.
The disciplinary board may consume time and resources in decision-making processes. The meetings of the board members, reviewing documents, hearing defenses and making decisions can be a time-consuming process. This may reduce operational efficiency in the workplace.
Establishing and managing a disciplinary board can put additional burden on the human resources department.
Disciplinary board decisions can sometimes disrupt the hierarchical balance in the workplace. In particular, senior managers applying disciplinary punishment to their subordinates can strain the balance of power within the company. In addition, some employees in the workplace
It is possible for individuals to perceive the disciplinary board’s decisions personally and create morale problems.
The disciplinary board may make decisions under the influence of personal prejudices among its members. Especially if manager-employee relations are tense, the decisions taken by the disciplinary board may be far from being objective and may lead to discrimination in the workplace. This may have negative effects on the employer’s relations with its employees in the long term.
The existence of a disciplinary board may create tension and stress among some employees. If the disciplinary board is too strict, it may cause employees to worry and create a negative atmosphere. This may create a source of stress in the workplace, especially for individuals who obey the rules but are not in line with the management’s discipline.
Each company’s culture is different and disciplinary board practices should be in line with the company culture. In some companies, while a flexible and innovative culture is adopted, the disciplinary board and penal sanctions may contradict this culture. If the disciplinary board is not compatible with the company’s culture, a perception that is contrary to the company’s values may arise among employees.
ÖZKÖK LAW OFFICE
Attorney EYLEM ALTUN TEKE
