TC SUPREME
9.Law Office
Main: 2015/7967
The verdict: 2017/2059
Decision Date: 16.02.2017
EMPLOYEE RECEIVABLES CASE – THERE IS THE PLAINTIFF’S SIGNATURE ON THE WAIVER AGREEMENT – THE PLAINTIFF HAS NOT REFUSED TO SIGN – SITUATIONS WITHOUT WILL DO NOT EXIST IN A RESULTING EVENT – DUE TO THE REJECTION OF THE CASE REGARDING THE RECEIVABLES CONTAINED IN THE WAIVER AGREEMENT
Summary: In the file submitted by the defendant, it is fixed and requested with the plaintiff’s signature, and the plaintiff’s signature cannot be proven by denial, fraud, threats and ikrah signature, the defendant’s signature does not contradict the defense that it should be decided to reject claims that he will receive overtime, public holidays and week holidays with the valid release agreement (waiver) signed after the termination of the employment contract and for all these reasons will receive overtime, public holidays and week holidays fees.
(6098 PK m. 132, 420) (818 P. K. m. 21, 23, 24, 25, 26, 27, 28, 29, 30, 31) (4857 P.K.M. 19) (YHGK. 21.10.2009 T. 2009/9-396 E. 2009/441 K.) (Y HGK. 27.01.2010 T. 2009/9-586 E. 2010/31 K.) (9. HD. ON 15.10.2010 2008/41165 2010/29240 K.) (9. HD. ON 05.11.2010 2008/37441 2010/31943 K.) (9. HD. ON 26.10.2010 2009/27121 2010/30468 K.) (9. HD. ON 04.11.2010 2008/37372 2010/31566 K.) (9. HD. ON 24.06.2010 2008/33748 2010/20389 K.) (9. HD. ON 27.06.2008 2007/23861 2008/17735 K.) (9. HD. 24.06.2010 T. 2008/33507 E. 2010/20380 K.)
Lawsuit: The plaintiff has requested to determine whether he will receive severance pay, notice compensation and overtime pay, national holiday and general holiday pay, week holiday pay and vacation pay.
The local court decided to partially accept the case.
Despite the fact that the defendant was appealed by his lawyer during the conviction decision, the file was examined, discussed and deemed necessary upon hearing the report issued by the Investigating Judge on the case file:
A) Summary of the Claimant’s Request:
The plaintiff’s attorney claimed that his client, who worked as an assistant on a public bus belonging to the defendant between Dec. 15.04.1999 and Dec. 16.04.2006, had his employment contract terminated unfairly by the employer and requested that he collect from the defendant his overtime pay, severance pay, general holiday pay, leave pay and annual leave rights.
B) Summary of the Respondent’s Reply:
Paying Decrees that the plaintiff’s claims do not reflect the truth, the plaintiff’s client worked in the company between 25.06.2001-31.05.2004, his absence from work after that date, his client was released on 31.05.2004 despite his acquittal, the defendant’s attorney requested the dismissal of the case, claiming that the compensation claims paid with statements and claims contrary to the truth lacked legal basis.
C) Summary of the Local Court Decision:
The court decided to partially accept the case on the grounds that the defendant was unfair in terminating the employment contract in accordance with the collected evidence and the expert report.
D) Objection:
The decision was appealed by the defendant’s attorney.
E) Justification:
1- When the articles in the file, the collected evidence and the legal reasons on which the decision was based were taken into consideration, it was understood that the defendant’s appeals outside the scope of the following paragraphs were not appropriate.
2 Decrees that there is a dispute between the parties regarding the validity of the notification in Hebrew.
In Turkish law, the release agreement was regulated in the Turkish Code of Obligations No. 6098, which entered into force on 01.07.2012, and the 132 of the law. a rule has been introduced in the form of the rule adopted in the article “if the debt arises in a certain way or is processed by law, the debt may be partially or completely eliminated without a release agreement due to the form of the party, even if it has been exempted by the parties to the contract”.
The termination of the debt in the commercial relationship by way of release is 420 of the Turkish Code of Obligations numbered 6098. it is arranged in the article.
According to the above-mentioned provision;
Release agreement received by the employee from the employer,
at least one month has elapsed from the date of release from the expiration of the contract, the release
if the type and amount of the subject matter you will receive is clearly specified, pay
it should be done through the bank, free of charge and according to the amount of the right. Hebrew Hebrews or Hebrew words that do not carry these elements are absolutely invalid. Paying pay contracts that do not include the fact that the right has been paid in the actual amount, or other payment documents that contain a declaration of release, are subject to receipt, limited to the amount they contain. Even in this case, payments must be made through the bank.
420 of the Turkish Code of Obligations numbered 6098. the article states that release agreements made within one month from the expiration of the employment contract will not be valid. Paid payable part of the receivable in the same article, ivazli release agreements (ivazli release) subject to the condition of payment of a portion of the receivable will be valid only if the payment is made through the bank is linked to the provision. 19 of the Labor Law No. 4857. the article provides for a one-month reduction period in terms of objection to termination, and the employee has the right to file a return-to-work lawsuit within one month from the date of termination.
At this point, a one-month period from the date of termination is important for determining whether the employee will return to his former job. In this case, in order to ensure job security, it is also necessary to reduce the possible pressure of the employer within a one-month period from the date of termination. Even for valid and justified termination requests, a one-month period must be waited for the regulation of Hebrew from the date of termination.
Although a one-month waiting period means a one-month delay in paying some of the employee’s labor receivables in terms of partial release, it is basically a situation that is in favor of the employee. Let us immediately state that the one-month waiting period relates to the time of the release agreements and is not a case related to execution. In other words, the payment of the employee’s rights such as severance pay, notice compensation, leave fee, which are covered by the exemption with termination, are not postponed for a month.
In the mentioned article of the Turkish Code of Obligations numbered 6098, the imposition of the obligation of the employer to pay through the bank affects the result at the point of validity of the Hebrew. However, for payments made by non-bank means, the debt is fully or partially terminated through fulfillment instead of release.
The above-mentioned provision of the law provides for restrictions in favor of the employee and only in cases where the employee is a creditor. Expenses incurred for the employee’s education against the employer, compensation for fines and damages, in re-requested applications, and even in cases where the employee owes the employer in accordance with unfair enrichment provisions, the parties have been put under the provision that employees can terminate their debts by fulfilling them, without any restrictions.
The provisions of the second and third paragraphs of the same article shall apply to all rights arising from the service agreement, including compensation and receivables that may be claimed by those deprived of their livelihood and other relatives of the employee.
The existence of legal conditions should be sought for release agreements issued after 01.07.2012, when the Turkish Code of Obligations numbered 6098 entered into force. However, the issue of the validity of the Hebrew signed during the period when the Code of Obligations No. 6098 was not in force should be evaluated within the framework of the relevant principles of our Department. The fact that the Hebrew language was arranged within one month from the date of termination and the payments were not made through the bank does not lead to invalidity for the Hebrew contracts arranged before 01.07.2012.
Before the entry into force of the Turkish Code of Obligations, the invalidity of the release agreements concluded between the employee and the employer regarding the Decoupling of the employer’s debts should be evaluated within the framework of the following principles:
a) Within the framework of the established case law of our department, the release contracts issued while the business relationship is ongoing are invalid. During this period, the employee is completely dependent on the employer and is likely to go down the path of signing a release agreement against his will in order to ensure the continuation of the employment relationship despite the job security provisions or to obtain some labor receivables as soon as possible, which is the stabilizing practice of our Department in this regard (Supreme Court 9. HD. 15.10.2010 day, 2008/41165 E, 2010/29240 K.).
b) Hebrew cannot be considered valuable if there is no date in it and it does not appear from its content that it was edited after the date of termination (Court of Cassation 9. HD. day 5.11.2010, 2008/37441 E, 2010/31943 K).
c) Whether the Hebrew language is valid or not, it is 23-31 of the Code of Obligations No. 818, which is in force until 01.07.2012, regulating intentional damage. their substances should also be evaluated in terms of their principles. If one of the parties makes a fundamental mistake during the performance of the waiver agreement and encounters deception or intimidation of the other party or a third party, the waiver cannot be mentioned.
On the other hand, 21 of the Code of Obligations numbered 818. the excessive use criterion (gabin) contained in the article should also be evaluated at the point of validity of the release agreements.
Cases of violation of the will in Hebrew, 31 of the Code of Obligations No. 818. it must be put forward within the one-year reduction period stipulated in the Article (Court of Cassation 9. HD. 26.10.2010 day, 2009/27121 E, 2010/30468 K). However, in terms of printed Hebrew letters received during the entry into a commercial relationship, a one-year period does not apply during the continuation of the commercial relationship.
d) The release agreement is a way to terminate a debt whose existence is undisputed, but it is not possible to terminate debts whose existence is doubtful or disputed through release. Therefore, it is inconceivable that a debt that is not claimed to be the rightful owner of the employee should be the subject of release. It should be accepted that release agreements that contradict the employer’s defense and other records are invalid (Supreme Court 9. HD. 4.11.2010 day 2008/37372 E, 2010/31566 K).
e) In release agreements containing an amount, if the full amount of the receivable is paid, the debt ends with performance. Pay pay, however, in cases of partial payment, the issue of presentation has not been evaluated in the established case law of our Department and it has been accepted that the payment made is subject to receipt (Court of Cassation 9. HD. 21.10.2010 day 2008/40992 E, 2010/39123 K.). The fact that the receipt containing the amount was received during the study does not eliminate the receipt effect (Court of Cassation 9. HD. 24.6.2010 day 2008/33748 E, 2010/20389 K.).
f) In release agreements that do not contain an amount, the issue of validity should be carefully considered. An audit of the violation of the will should be carried out and solutions should be sought regarding the validity of the Hebrew according to the characteristics of the concrete event (Court of Cassation 9. HD. 27.06.2008 day 2007/23861 E, 2008/17735 K.). In Hebrew law, where the receivables issued after the termination are counted one by one, the release must be considered valid unless the will is asserted and proved in the event of termination (HGK of the Supreme Court of Appeals. 21.10.2009 day, 2009/396 E, 2009/441 K.).
Hebrews g) Again, the fact that the employee has a passionate record of reserving his legal rights in Hebrew shows that there is no will in Hebrew (Court of Cassation 9. HD. 4.11.2010 day 2008/40032 E, 2010/31666 K).
h) It cannot be said that the debt is due in terms of business receivables that are not included in Hebrew. In Hebrew, the existence of a situation that contradicts the defense in terms of some of the job receivables contained in the Hebrew language does not completely invalidate the Hebrew language. The will of release must be evaluated in terms of the parts that do not contradict the defense (Court of Cassation 9. HD. 24.6.2010 day, 2008/33597 E, 2010/20380 K). In other words, in such cases, one can speak of the divisible influence of the Hebrew language. While the Hebrew receipt provision is considered to be valid for some receivables, some business rights and receivables may be deemed invalid due to a contradiction. In terms of items that do not contradict the same Hebrew and do not contain amounts, it can be accepted that the debt ends with release.
The Hebrew defense can be put forward at any stage of the trial, as an appeal method that may eliminate the right (HGK of the Supreme Court of Appeals. 27.1.2010 day 2009/9-586 E, 2010/31 K.; Supreme Court 9. HD. 13.7.2010 day, 2008/33764 E, 2010/23201 K.).
It is a concrete dispute submitted by the defendant, certified by the plaintiff’s signature and in which the plaintiff’s signature is sought, which cannot be proved by denial, fraud, threats and signature of ikrah by the plaintiff, that he will receive overtime pay for general holidays and week holidays, does not contradict the defendant’s defense, and for all these reasons, after the termination of an employment contract signed on 04/06/2004, the current release agreement (disclaimer) for the collection of overtime, public holidays and week holiday fees, The Hebrew agreement (in Hebrew) is invalid on grounds that it is incorrect to make a written decision with the acceptance that it is invalid.
3- The second dispute between the parties is collected at the point of whether the claimant’s request for withdrawal has been made Decently.
It is understood from the scope of the file that the plaintiff’s attorney corrected his case with the judge’s dismissal dated 25/05/2009, increased the amount of receivables in accordance with the expert report and deposited the settlement fee on the same day, and a judgment was established by taking into account the court.
The plaintiff’s attorney requested 1.000 TL severance pay, 1.000 TL notice compensation, 3.000 TL overtime pay, 1.000 TL general holiday fee, 1.000 TL week holiday fee and 1.000 TL leave fee in the lawsuit petition. In the correction petition written above, the plaintiff’s attorney corrected his case by saying, “We are correcting the lawsuit we filed over TL 8,000 to TL 32,000…” without specifying how much he increased the amount of receivables he requested.
It is clear that the correction made in this way is not in accordance with the Code of Criminal Procedure No. 1086 and the CCP No. 6100. It is not possible to reconcile the receivables according to this adjustment without specifying which receivables have been increased by how much. What the court should do is to give the plaintiff’s lawyer time to explain the petition for the provision in question, make it clear which will receive how much, and decide according to the result. It is wrong for the court to pass judgment on a job that has not been done properly, taking into account this evil eye of correction.
4- It is not considered that the fact that the paragraph of the provision does not specify that the amounts adjudicated are “net” or “gross” will cause hesitation in the application of the provision of CCP 297; it is contrary to its essence.
F) THE RESULT:
It was decided unanimously on 16.02.2017 to overturn the decision appealed for the reasons written above and to return the appeal fee previously received to the relevant person if requested.