TC
Supreme
law office
BASE NO.: 2015/16933
DECISION NO: 2017/19050
DECISION DATE: 25.9.2017
IF THE FEMALE EMPLOYEE WHO IS GIVING BIRTH IS NOT GIVEN A “MILK LEAVE”, SHE CAN REQUEST A 50% INCREASE IN THE MILK LEAVE FEE
It has been understood that the decision made as a result of the lawsuit between the parties was requested by the plaintiff’s attorney to review the appeal process and that the appeal request is within the Decisional period. Upon hearing the report prepared by the Examining Magistrate for the case file, the file was examined, discussed and deemed necessary:
decision
Payee’s attorney; our client, who works as a sales manager in the defendant’s branch, came to the workplace until 08:00-08:30, although the working hours are 09:00-18:00, he worked until 20:30, was paid for overtime work, whether he was in labor, milk with the permission of the employer between 12:30-13:30, although he was on lunch break, worked between 12:00-14:30, whether milk will be used from the client, who worked outside 3 or 4 times due to company meetings and appointments by stating this, he asked for a decision to be made on the collection of milk permit and milk fee expenses from the defendant.
The defendant’s attorney requested that the plaintiff be employed with a salary plus bonus, that overtime work be included in the salary, that she use 9 months of maternity leave other than 3 months of maternity leave, that there is no arrangement that her salary will be paid if it is not used, therefore the case was dismissed.
The court itself determined that the plaintiff’s working hours are 270 hours and above, and the cost of the plaintiff’s salary + bonus structure, according to the work he does and the result of the work, according to the variable premiums he receives from the employer, any document or statement reflected in the file cannot be determined because he has worked more than 270 hours, and the plaintiff cannot consent to this wage with a milk permit, if requested, again by the Supreme Court 9. Paying October 10, 2012 According to the decision of the Legal Department dated 01/02/2012 and numbered 2010/33549-2012/2569, since there is no rule in the labor law that employees will be paid additional wages if milk permit is not granted, the sanction is 104 of the Labor Law. is the substance.
It was decided to dismiss the case on the grounds that the provision for fining the employer is regulated in the article, therefore, the plaintiff cannot charge a fee in return, even if the milk permit is not used.
The decision was appealed by the plaintiff’s attorney.
Reason:
1-)Considering the articles in the file, the evidence collected 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-) There is a dispute between the parties as to whether the claimant is entitled to a milk permit or not. Dec.
in Article 74/7 of the Labor Law No. 4857, “Women workers may be given milk for a total of one and a half hours a day to breastfeed their children who have not reached the age of one. The worker determines for himself which hours this period will be used between, and no matter which hour it is divided into, this period is counted from the daily working time. Dec.” there is an arrangement in the form of.
104 of the Law No. 4857. in addition, it is stipulated in the article that if the employer acts contrary to the provision of this article regarding the regulation of work, a fine will be imposed, and the use of milk permits should be connected with an administrative sanction.
Regarding the milk permit, according to our previous opinion, according to the Decision of our Department dated 13.06.2016 and numbered 2015/12878 and the Decision numbered 2016/17527 of the Labor Law numbered 4857, 69/3. paid paid overtime in the article
“The night work of the employees cannot exceed seven and a half hours, although there is no legal regulation that night work will be paid with an increased wage, this issue has been clarified by the established case law of our Department and it has been decided that overtime done at night should be paid with an increased wage. It has been evaluated that it is more appropriate to make a similar comment about milk permit in terms of fairness and the purpose of the legislator.
In the same decision referred to;
“According to the law, the issue of giving women workers 1.5 hours a day to breastfeed their children (in addition, time Decrees between the parties may be otherwise and only in favor of the employee) is not a situation that is at the employer’s initiative, but Article 74/7 of the Labor Law No. 4857. 1 of the Constitution. in accordance with paragraph 50/2 of Article of the Constitution,
it was stipulated that the calculation of a 50% wage increase should be made on the basis of determining the unused period if the employee must use a milk permit, but this permit is not used, and it was decided that the provision was violated on the grounds that it would be more in accordance with the spirit of Law 4857 by adopting its article and objective interpretation.” Concrete
in a dispute, while the claimant’s failure to use the milk permit period was determined and the calculation had to be made on the 50% increase fee, the rejection of the request with written justification was found to be incorrect and had to be overturned.
CONCLUSION: It was unanimously decided on 25.09.2017 to overturn the decision appealed for the reasons written above and to return the appeal fee previously received to the relevant person if requested.
TC
Supreme
law office
ORIGINAL NO.: 2017/4543
DECISION NO: 2017/7375
DECISION DATE: 27.4.2017
The plaintiff requested that severance pay, notice compensation, national holiday and general holiday pay, leave pay, overtime pay, evening work pay and milk leave pay be decided together with the payment of wage receivables.
The local court decided to partially accept the case.
Although the parties were appealed by their lawyers during the sentencing, after hearing the report prepared by the Examining Magistrate for the case file, the file was examined, discussed and deemed necessary:
decision
The plaintiff’s attorney told the plaintiff that the defendant worked as a Human Resources Training Officer at the workplace from 01/05/2008 until the termination of the employment contract, the employer entered into the plaintiff’s employment contract on 15/04/2013 under Law 18. paid paid termination notice in accordance with Article 25 of the Labor Law, the plaintiff signed the notice of termination without even receiving the termination petition, the plaintiff requested notification and payment of rights from the employer on 16/04/2013, instead of paying these rights, the employer must notify the plaintiff of his excuse and make a notice of absence, otherwise the employment contract will be terminated in accordance with Article 25 of the Labor Law.
he informed that he would be terminated in accordance with the article, and that he was warned that the last net fee he received was TL 2,415.00. paid paid annual leave, paid working wage from 07:45 to 23:30 in the morning, whether there are national holidays, public holidays and arefe days, paid afternoon working wage, if the plaintiff gives birth during the study period, if the applicant pays milk fee for permission to use this job blocked by the employer, notice and severance, paid annual leave, overtime, holiday work and the defendant is asked to decide on the collection of their receivables by taking milk leave fee.
The defendant’s attorney stated that the termination of the plaintiff’s employment contract by the company was at his own request, based on the health records received on 15/04/2013, the contract was expected to be terminated due to health problems, it was expected to start on this, I could not work due to traffic, this was not a reason,
I reported due to the absence of the minutes kept on 16/04/2013, the plaintiff came to work for health reasons, the exit was made on that date, I wanted this statement to be received in writing, he left the workplace by avoiding making a statement, in order not to suffer loss of rights, no exit was made, the plaintiff was notified and asked to inform or explain his justified justification, the plaintiff terminated his employment contract on the same day on 16/04/2013, learned of the warning, … 13 Evmiye was notified on the date of the notary’s notice No. 12459 on 18/04/2013, in the response of the Beyoglu 35 Notary Public, which was detected on 26/04/2013,
the warning was detected due to leaving work whether he is entitled to compensation, whether termination has taken place if justified conditions have been met, whether annual leave has been used, he argued that the case should be dismissed if the working conditions have not been changed, whether there are aggravated conditions, colleagues claim that similar improvements have been made as the permits are called milk money, if there are more attendance records of the working staff that are incompatible with the plaintiff’s claims and coincide with the first year in question, or if the overtime has been paid by him in the form of material refund.
At the end of the trial conducted by the court, the date of dismissal of the plaintiff was 15/04/2013, the reason for dismissal was 18 of Law No. 4857. 6 of the contract, where there is an article, Human Resources’ name, surname and signature are approved to be hired by the plaintiff upon termination notification, the termination notification was subsequently made on 16/04/2013, dismissed by the employer on 15/04/2013, those who are considered to be on leave.
it is stated that they are entitled to annual leave severance pay when they use the clause. In the article, the cost of Personnel Registration Expenses includes overwork and input and output records related to overwork are presented, a written document is submitted regarding the claim that the plaintiff did not calculate overtime work exceeding 270 hours per year in his absence, but according to the records, on public holidays, if milk is provided wholesale or regulatory permission in law 857, it will not be paid, for this reason, it was stated that since it is not possible to cover it as a salary, it was decided to collect severance and notice compensation, holiday pay, denied leave, overtime and milk leave with the partial acceptance of the case on the grounds that the plaintiff does not have a milk leave allowance.
The decision was appealed by the deputies of the parties.
Reason:
Considering the articles contained in the file, the evidence collected and the legal reasons on which the decision was based, it has been concluded that all the objections of the defendant and the plaintiff are groundless outside the scope of the following paragraph.
74 of the Law No. 4857. according to the article, women workers are allowed to provide milk for 1.5 hours a day to breastfeed their children who have not reached the age of 1. The employee Decrees between which hours this period will be used.
This period is counted from the daily working time. A worker cannot make a collective use request by obtaining a milk permit. The sanction of non-delivery of milk by the employer is 104 of the Law. it is also referred to as an administrative fine in the article. It is placed under the provision in the article. It should be noted that a behavior associated with a criminal sanction should also have a legal sanction.
Milk permit is an excuse permit arising from the law and is a legal right. As a rule, there is also a fee.
However, it has the property of not being delayed and cannot be used later. For this reason, it must be requested by the worker to be used at the time of birth. Although a fee is not stipulated in exchange for a milk permit, a legal sanction such as a criminal sanction should also be applied if it is not given to the employee.
If the employee has worked 1.5 hours a day with milk leave, it should be considered overtime because he has worked overtime in return for this, and the overtime wage should not be taken into account by calculating.
In the concrete dispute, the plaintiff claimed that the postpartum milk permit was not used, while the defendant claimed that the wholesale milk permit was used for five days. First of all, the milk permit should be determined, deducting the period from the plaintiff’s date of birth, the child’s date of birth to one year old, giving the plaintiff a total of 1.5 hours per day to use, excluding birthdays and other days off, the rest should be calculated as overtime pay on the date it should be used, and while the milk permit provision should be rejected, the rejection of this receipt is erroneous on written grounds.
The claimant’s last remaining 15-day leave fee is TL 1,830.66. it has been accepted that the receivables have been accrued and paid with the payroll dated 30.04.2013. However, the payroll has not been signed. The bank records have been submitted until 15.04.2013. Paying paid permission by the bank is wrong to decide to reject this loan without determining whether it has been paid or not.
CONCLUSION: It was unanimously decided on 27.04.2017 to overturn the decision appealed for the reasons written above and to return the appeal fee previously received to the relevant person if requested.