High Court, 22nd Civil Chamber
Case Number: 2012/3328
Decision Number: 2012/8399
“Text of Justice”
COURT: Izmir 9th Labor Court
DATE: 02/13/2012
FILE NO: 2011/556-2012/76
The plaintiff claimed that he worked at the defendant’s workplace between May 6, 2005, and May 13, 2011, and that the employer unjustly terminated the employment contract on the grounds of absenteeism, demanding severance pay, notice pay, and the collection of certain work-related receivables.
T he defendant, on the other hand, argued that the plaintiff left the workplace on June 8, 2011, after arguing with other employees, did not return to work in the following days without a valid excuse, and that the employment contract was justifiably terminated on the grounds of absence, requesting that the case be dismissed.
The court, based on the evidence gathered and the expert report, decided to partially accept the claim on the grounds that the defendant’s termination of the employment contract was unjustified.
The defendant appealed this decision.
1- According to the items in the file, the evidence gathered, and the legally binding reasons on which the decision is based, the defendant’s objections outside the scope of the following paragraph are invalid.
2- There is a dispute between the parties as to whether the plaintiff employee worked overtime.
The employee claiming to have worked overtime is responsible for proving this claim. The rules regarding payroll records apply here as well. A payroll record bearing the employee’s signature is considered conclusive evidence until proven to be forged. In other words, unless a payroll record is alleged to be forged and proven so, it is assumed that the overtime pay shown on the signed payroll record has been paid.
Workplace records, especially documents showing entry and exit from the workplace and internal workplace correspondence, constitute evidence for proving overtime work. However, if overtime work cannot be proven with written documents, the parties must reach a conclusion based on witness statements. In addition, certain general facts known to everyone may also be taken into account at this point. Whether overtime was worked should be investigated based on the nature and intensity of the work actually performed by the employee.
If it is understood that overtime wages were paid on signed payrolls, it cannot be claimed that the employee actually worked more.
However, if there is an objection that the employee’s overtime entitlement is higher, it can be proven with any evidence that the employee worked more than what appears on the payroll. If the pay slips are signed and there are no objections, the employee must prove with a written document that they worked more than what appears on the pay slip. If the employee is paid different amounts each month through the bank, even if the pay slip is not signed, if there is no objection, the amount paid is higher.
This leads to the conclusion that overtime must be proven with written evidence.
In the specific case, the signed payrolls submitted by the defendant show that overtime wages accrued for the 11th and 12th months of 2010 and the 1st, 2nd, 4th, and 5th months of 2011, and that the amounts accrued on the payrolls were paid into the plaintiff’s bank account without any reservations.
Although the explanatory section of the expert report based on this ruling states that these accrued months should be excluded from the calculation, it is seen that the period in question was not excluded when the calculation was made. Ruling based on an erroneous expert report necessitated the reversal of the decision.
3- Another dispute between the parties is whether the employee is entitled to wages for unused leave periods.
Article 59 of Law No. 4857 states that if the employment contract is terminated for any reason, the wages for the unused annual leave periods shall be paid to the employee in addition to the final wage.
The termination of the employment contract is a prerequisite for converting the annual leave entitlement into wages. At this point, how the contract was terminated and whether it was based on a valid reason is irrelevant.
>The burden of proof regarding the use of annual leave lies with the employer. The employer must prove that annual leave was used by means of a signed leave record or equivalent document. The burden of proof in this regard lies with the employer, and the employer may require the employee to take an oath.
In the specific case, the annual leave register submitted by the defendant contains signatures indicating that the plaintiff used the forty-two days of annual leave to which he was entitled based on his length of service. In addition, the content of the records of warnings given to the plaintiff, who is illiterate, by the employer prior to the termination has also been determined. Since the conditions stipulated in Article 206 of the Civil Procedure Law No. 6100 were not met, the court ruled that the signatures in the plaintiff’s annual leave record book could not be considered valid and ordered the payment of annual leave wages for a period of forty-two days.
The plaintiff’s spouse, witness Oruç Budanır, stated that the plaintiff had taken fifteen days of annual leave during the period of employment. The plaintiff,
Although the defendant stated in his statement regarding the evidence presented by the employer that the signatures on the pay slips were not his, he did not claim that the signatures in the annual leave register were not his and did not argue that they had been obtained from him by fraud.
The rule stipulated in Article 206 of Law No. 6100 regarding the preparation and conditions of sealed, fingerprinted, and marked documents relates to the form of proof, not the form of validity. In this context, the form of regulation envisaged in the aforementioned article is only valid if the fingerprint or the special mark of the seal is rejected; in this context, if the fingerprint is accepted, the fingerprinted document is considered valid even if it is not certified in accordance with Article 206 of the Code of Civil Procedure. From the perspective of the principle of trust, signing or marking a document without reading it should be considered a valid document.
This is because a person who signs or prints their fingerprint on a document knowing this situation, even if they are not aware of its content, cannot later claim that the document is invalid. In view of this situation and considering the material and legal facts explained above, the decision to accept the case, which should be rejected in terms of annual leave pay, is incorrect.
CONCLUSION: On 02.05.2012, it was unanimously decided to cancel the appealed decision for the reasons stated above and to refund the appeal fee previously paid to the relevant person upon request.