TC
YÜCE
Law Office
CASE NO: 2015/26859
DECISION NO: 2018/84
DECISION DATE: 15.01.2018
Upon the request of those receiving severance pay, overtime pay, annual leave pay, and national holiday and general holiday pay, the manner in which the employment relationship is terminated – leave cannot be used in exchange for work performed on national holidays and general holidays
SUMMARY:
The plaintiff resigned conditionally, stating the reasons. Since he cited health reasons in his resignation letter, the conditions for retirement, except for age, were met on the date of termination. Therefore, the provision on severance pay difference must be taken into account. The defendant and the plaintiff jointly submitted signed documents for 2008 and 2009, but no documents were submitted to prove that work was performed on national holidays and public holidays in 2010 and 2013.
Even if it is presented that the employee would be considered on leave in accordance with the provision that work would be performed on national holidays and general holidays in 2010 and 2013, the document will be considered invalid. The Labor Law grants free time for overtime work. If the employee works on official holidays, the remuneration for this work must be paid. The fact that leave has been granted in exchange for this work does not mean that the employee is not entitled to leave pay. This is because granting time off in lieu or holiday work leave is not in accordance with the law.
The plaintiff requested that the court rule that overtime pay, annual leave pay, and national holiday and general holiday pay be paid together with severance pay.
The Local Court ruled to partially accept the case.
Although the parties’ attorneys appealed during the sentence, the defendant’s attorney requested a hearing; pursuant to Article 438 of the Code of Civil Procedure, the request for a hearing was rejected and a review of the documents was ordered. The case file was reviewed based on the report prepared by the Review Judge, and the matter was discussed and decided:
SUPREME COURT DECISION
The plaintiff’s attorney stated that his client worked at the defendant employer’s workplace as a foreman between September 1, 1995, and September 20, 2013, and most recently as a measurement and evaluation officer, and that he worked for a salary of 1,570.00 TL at the end, that he worked for a salary of 20,000.00 TL in exchange for receiving a letter of resignation from the employer, that the payment was made in TL, and that this payment was paid in installments, requesting the collection of overtime, annual leave, national holiday, and general holiday entitlements from the defendant along with the remaining severance pay.
The defendant’s representative argued that the employee had resigned, that the plaintiff’s weekly working hours did not exceed 45 hours and therefore he did not work overtime, that he was paid for his work on national holidays and public holidays, and that he was not entitled to severance pay because he was not paid for annual leave, and requested that the case be dismissed.
Based on the evidence gathered by the court and the expert report, the employment contract between the parties was terminated upon completion, and the lawsuit was filed by the plaintiff. Therefore, the plaintiff was not entitled to severance pay or overtime leave, and the claim for leave pay and overtime pay was partially accepted and the case was dismissed, and it was decided to collect the severance pay and overtime pay.
The decision was appealed by the parties’ representatives.
Reason
1-
Considering the items in the file, the evidence gathered, and the legal grounds on which the decision is based, the appeals of the parties’ representatives outside the scope of the following paragraphs are not deemed valid.
2-
There is a dispute between the parties as to whether the employment relationship ended with the dismissal of the employee.
In general, the right to terminate an employment contract is a right that grants the right to terminate the employment contract immediately or after a certain period of time by means of a unilateral declaration of intent addressed to the other party and that leads to a disruptive novelty. The employee’s right to terminate the employment contract immediately for just cause is regulated in Article 24 of Labor Law No. 4857. The normative regulation regarding the notification of the termination of an employee’s employment contract is addressed in Article 17 of the same law. Furthermore, the law does not specifically regulate an employee’s resignation.
An employee’s termination of the employment contract without a just cause and without notice should be considered a resignation.
An employment relationship ends when the intention to resign is communicated to the other party. Although the employer is not obliged to accept the resignation, if the letter of resignation has not been processed by the employer and the employee continues to work at the workplace, there can be no real resignation. However, if the parties agree to continue working for a certain period despite the resignation, it should be accepted that the employment contract will be terminated at the end of the agreed period.
Conditional resignation does not apply as a rule. As is most common in practice, a request to leave the job should be considered not as a resignation, but as an obligation to enter into a replacement (termination agreement) on the condition that the employee’s notice and severance pay rights are paid.
Abuse of the employee’s intent in the resignation letter is also a common occurrence. If the employer demands that the employee submit a written resignation letter stating that the severance pay will be paid immediately and exerts similar pressure, and the employee complies, there can be no question of an actual intention to resign. In this case, it must be accepted that the termination was carried out by the employer.
A resignation letter drawn up as a result of pressure from the employer cannot be evaluated. Although our Chamber accepts that in such cases the termination was carried out by the employer, it is necessary to assess whether the employer’s termination was justified (Supreme Court of Appeals 9th Civil Chamber, 3.7.2007, 2007/14407 E, 2007/21552 K.).
If the employer obtains a letter of resignation by terminating the employee’s contract for a valid reason, it is not correct to consider the resignation valid if the reasons for termination exist immediately and the employer will resort to the appropriate termination procedure. In this case, it should be concluded that the employee has terminated the contract for a valid reason.
In conflicting situations, such as when the resignation letter is based on the payment of notice and severance pay to the employee, if the termination by the employer is stated in the notification made to the Turkish Employment Agency, the effect of this conflict on the validity of the resignation must be assessed on a case-by-case basis.
If the statement in the resignation letter is of a general nature, there is no unlawful direction for the employee to specify concrete reasons in the lawsuit petition. In this case, the actual circumstances behind the resignation must be investigated.
If the employment contract ends with resignation, the employee cannot benefit from the provisions of job security and is not entitled to notice and severance pay. Since the employee may be obliged to pay notice compensation to the employer in case of resignation, documents of resignation must be handled with care. Any objection to the signature or additions to the text must be examined from a technical point of view.
According to Law No. 4857, contract provisions and workplace practices stipulating that severance pay shall be paid even if the employee resigns are valid, and in this case, severance pay shall be calculated in accordance with Article 14 of Law No. 1475, and the severance pay ceiling specified in this article shall be complied with.
It should be noted that the severance pay ceiling stipulated in the aforementioned Law is of an absolute mandatory nature.
In the specific dispute, the plaintiff resigned conditionally, stating the reasons. Since he cited health reasons in his resignation letter, the conditions for retirement, except for age, were met on the date of termination. Therefore, it is erroneous to accept and reject the partial payment as a substitute, and the difference must be included in the severance pay provision.
3-
The plaintiff employee’s entitlement to remuneration for work performed on national holidays and public holidays and the existence of a dispute between the parties
The Labor Law No. 4857 provides for free time in lieu of overtime. If the employee worked on public holidays, they must be paid for it. Granting leave in lieu of this work does not mean that you are not entitled to receive leave pay. This is because granting leave for free time or holiday work is not in accordance with the law.
The ruling is essentially based on an expert report, stating that the official holidays (April 23, May 19, and October 29) are holidays, but the defendant claims that the plaintiff’s allegations are based on the fact that national holidays and general holidays were not announced, and that the defendant used this as a reason to grant work permits to employees.
However, the defendant’s signature appears on documents submitted by both the defendant and the plaintiff, indicating that the defendant obtained work permits for national holidays and public holidays in the years 2008 and 2009, as well as between 2010 -2013, even if it is argued that it should be ruled that work permits should be obtained for national holidays and public holidays in 2010 and 2013 and calculated accordingly, the document is deemed invalid. Although it is established by the statements of the plaintiff’s witnesses that the plaintiff worked on the specified days, the rejection on the grounds that the work could not be proven is erroneous.
3-
There is a dispute between the parties as to whether the fake employee worked overtime.
The expert report prepared based on the decision determined that the plaintiff’s work during the week did not exceed 45 hours, but that he was entitled to overtime pay due to his work on Saturdays, and the calculation was made accordingly.
The file contains documents showing that the plaintiff used his free time in exchange for the extra work he did on Saturdays. It is erroneous to conclude that these documents will be accepted without thorough examination and evaluation.
CONCLUSION:
For the reasons stated above, it was unanimously decided on 15.01.2018 to REVERSE the appealed decision and to refund the appeal fee previously paid to the parties upon their request.