TC SUPREME COURT 22. Law Office Article No.:2015/16933
Decision No:2017/19050
Decision Date: 25.09.2017
Supreme Court Decision
COURT: Employment Tribunal
TYPE OF CASE: RECEIVABLE by the COURT
as a result of the examination of the decision made as a result of the lawsuit filed between the parties upon the request for Decrees by the plaintiff’s attorney
it is understood that the request for appeal is in place. The examining magistrate examining the case file …
after listening to the report organized by the, the file was examined, discussed and deemed necessary:
THE COURT OF CASSATION
Summary of the Claimant’s Claim:
Attorney of the plaintiff; His client works as a branch sales manager at the defendant’s workplace, working hours
even though it is 09:00-18:00, he can come to work between 08:00-08:30, until 20:30. He can come to the workplace between 08:00-08:30.
paid maternity leave by her employer during the period she gave birth, she was working, she was not paid overtime wages, she was paid maternity leave wages by her employer during the period she gave birth,
although the dinner time is between 12:30 and 13:30, it has been determined that it is Dec 12:00-14:30,
stating that he cannot use the milk permit due to customer appointments and company meetings, stating that there should not be much work except 3 or 4 times
he requested that a decision be made on the collection of the defendant’s wage and milk permit fee.
Summary of the Defendant’s Defense:
The defendant’s attorney; The plaintiff works with a salary plus a bonus, is included in the fee for overtime work, for 3 months
she has been using her milk leave, and she has been using her leave for 9 months, except for maternity leave, and if she does not use it, her fee will be paid,
for this reason, he has requested dismissal due to the absence of regulation.
Summary of the Court Decision:
According to the court, the plaintiff’s working hours are determined by him and limited to 270 hours
, that overwork should be included in the wage, the plaintiff’s work
according to the conclusion, according to the working procedure, the wage + bonus should be accepted, and also received a variable bonus from the employer, when it exceeds 270 hours
in addition, no documents or statements can be detected in the file indicating that it is working, and
despite the fact that the plaintiff declared that the worker could not use the milk permit and demanded a fee for this, the Supreme Court 9. Law
Dated 01/02/2012 and
in case milk permit is not granted according to the decision numbered 2010/33549-2012/2569, also
There is no regulation in the Labor Law that wages will be paid, the sanction of which is 104 of the Labor Law. it is connected to the provision stipulated in the article.
According to the article, the issue of fining the employer is regulated, so the plaintiff
even if the milk permit has not been used, he cannot charge a fee for the case.
the rejection has been decided.
Objection:
The decision has been appealed by the plaintiff’s attorney.
Reason:
1-According to the article in the file, the collected evidence 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 appropriate.
2-The dispute arising between the parties on whether the plaintiff is entitled to receive a milk permit Decrees whether the plaintiff is entitled to
available.
74/7 of the Labor Law No. 4857. in the article “For women workers to breastfeed their children who have not reached the age of one
milk can be given for a total of one and a half hours a day. What time will this time be divided into and
by determining how much will be used by the employee himself, this period is counted from the daily working time. it is regulated by the “provision
available.
104 of the law No. 4857. contrary to the provision regarding the regulation of the work contained in the article
to the provision that administrative sanctions will be applied to the acting employer if he acts by giving milk permission
it is connected.
As for the milk permit, according to our previous opinion, our apartment is located on 13.06.2016 tr 2015/12878 Tr 2016/17527
Decision No. Decision No. 69/3 of the Labor Law No. 4857 ” numbered decision “Sevedibucuk workers work at night
it cannot exceed one hour, according to the provision that night work will be paid at an increased wage
although there is no legal regulation, this situation has been clarified by the established case law of our department
and it has been accepted that the overtime work done at night should be paid over the increased wage
. Similarly, it is fair to comment on the milk permit and … and the Law
it has been evaluated that it is more suitable for the purpose of the putter.
In the same decision referred to;
“According to the law, women workers are given 1.5 hours a day to breastfeed their children (in the opposite direction and only to the worker
the issue of granting milk permission if it can be agreed Decently between the parties
according to the provision contained in Article 74/7 of the Labor Law No. 4857, this is not a situation that is at the employer’s initiative, and if the employee needs to use a milk permit and this permit is not used
it Decrees that the employee will determine between which hours and how many hours the time will be divided, determination of unused time and calculation of 50% increased wage
Article 50/2 of the Constitution. with the adoption of the article, with the objective interpretation of the law No. 4857
it has been decided to annul the provision on the grounds that it would be more in accordance with the spirit of law No. 1”.
In a concrete dispute, the determination of the period during which the plaintiff cannot use the milk permit and
it has been understood that the fee should be increased by 50% when it is necessary to make a calculation, and that the rejection of the request with a written justification should be invalid and distorted.
Result:
If the decision appealed for the reasons written above is OVERTURNED
if requested, it was decided unanimously on 25/09/2017 that the appeal fee received in advance would be refunded to the relevant person.