CAN THE LABOR CONTRACT OF A SMOKING WORKER BE TERMINATED FOR JUST CAUSE?
In which conditions the employee can be fired without severance and notice pay is implied in the article 25/II of the Labor Law No. 4857. In the aforementioned subparagraph of the article, “For immoral, dishonourable or malicious conduct or other similar behaviour”, which gives the employer the right to terminate for just cause, is regulated. “Smoking” is not taken part among the subparagraph of the article. However, the absence of such a regulation in the article does not mean that the employer can not fire the worker who smokes in the workplace without severance and notice pay despite the ban.
In a decision of the 7th Civil Chamber of the Court of Cassation (Act No. 2015/4672, Decision No. 2015/7580, Date: 28.04.2015), the employer who fired the employee working in the paper mill and contracting an engagement to comply with the smoking ban twice before, however, not complying with the ban, without paying compensation was justified, based on the fact that the workplace is a place suitable for fire and that the employee imperils the safety with this behavior. The reason for the employer to be justified here is that the employee actually imperils safety rather than smoking. However, point to taken into consideration in here is that the employee must be notified in writing that smoking is prohibited in the workplace. This can be specified in the employment contract or notified to the employer under a separate letter. As a matter of fact, in the case in question, the employee contract an engagement of undertaking in this regard.
On the other hand, in a decision of the 22nd Civil Chamber of the Court of Cassation (Act No. 2016/18381, Decision No. 2016/23243, Date: 13.10.2016), the employer who fired the employee detected to smoke in the locker room at the workplace without paying compensation was unjust. The reason for this decision of the Court of Cassation is that the penalty for smoking in closed areas is an administrative fine (Pursuant to Article 5/1 of the Law on the Prevention and Control of the Damages of Tobacco Products, the penalty for smoking in prohibited places by the Law, especially in closed areas, is 188 Turkish Liras for 2020.) and it is stated that smoking in the workplace cannot be a just cause for termination as long as it does not pose a special danger in terms of safety, that is, it will not give the employer the right to fire the employee, and that the danger of smoking in the locker room of the worker in terms of safety could not be explained by the employer.