Summary:
It is accepted that the amount of money or benefits measurable in monetary terms, other than wages, shall be determined by dividing the total payments made in the last year by 365 for the purpose of calculating compensation (9th Civil Chamber. 29.9.2005, 2005/342 E, 2005/31714 K., Supreme Court 9th Civil Chamber, 12.4.1999, 1999/5910 E, 1999/7119 K.). For monetary rights that are not periodic in nature, the amount corresponding to one day must be determined by dividing the payments made during the year by 365 days.
For example, since the time (road) premium received by a truck driver during the year may vary constantly, it may be difficult to base the calculation on a specific period. On the other hand, it is not possible to say that the allowance paid to the employee twice a year during religious holidays is related to a specific period. In this case, it would be appropriate to divide the annual payment amount by 365. Finally, it is undisputed that monetary assistance provided once a year (such as firewood assistance) will be reflected in the compensation based on the wage and will be calculated by dividing the annual amount by 365.
TC
Supreme
Court of Appeals
Decision No: 2014/22935
Decision No: 2015/33774
Date: 30.11.2015
COURT OF APPEALS DECISION
A) Summary of the Plaintiff’s Claim:
The plaintiff claimed that the defendant’s employment contract was unjustly terminated while working as a drilling machine operator at the defendant’s workplace and that some payments were made incompletely, and requested severance pay and, in the merger case, the collection of seniority compensation.B) Summary of the Defendant’s Response:
The defendant requested that the case be dismissed, arguing that the plaintiff had been paid the severance and notice pay to which he was entitled following the termination of his employment contract.
C) Summary of the Local Court’s Decision:
Based on the evidence gathered and the expert report, the court ruled in favor of the plaintiff, finding that the defendant was entitled to severance pay and notice pay due to the employer’s failure to make the full payment after termination.
D) Appeal:
The defendant appealed the decision.
E) Grounds:
1- Based on the evidence gathered from the case file and the legal grounds on which the decision is based, the defendant’s appeals outside the scope of the following paragraph are unfounded.
2- There is a dispute between the parties regarding the salary to be used as the basis for calculating severance pay. The salary to be used as the basis for calculating severance pay is the employee’s last salary. In other words, it is the salary valid at the time of termination of the employment contract.
Since the termination occurred on the date the notice pay was paid, the salary should be based on the date of termination. Since the termination took place on the date the notice compensation was paid, the wage should be based on the termination date of the notice compensation.
Without the need to give notice or recognize the compensation paid (in full) by the employer in the event of termination, wage increases are added to the employee’s employment contract wage until the end of the notice period applied at the workplace, and the compensation is calculated according to this increase.
The wage to be used as the basis for calculating severance pay is the employee’s gross wage.In this case, severance pay is calculated based on the gross salary determined without deductions such as insurance premiums, tax union dues, etc., rather than the employee’s actual salary.
According to the severance pay principle, the monthly wage should be calculated by first multiplying the hourly wage by seven and a half, and then by thirty. Conversely, it is not correct to calculate the monthly wage based on the number of days the employee actually worked.
The concept of final salary refers to the last salary the employee earned while working within the scope of the employment relationship and to which they were entitled. If the employment relationship has been suspended and the employment contract has been terminated during the suspension period, the salary to be used as the basis for calculating severance pay should be the last salary to which the employee was entitled before the suspension of the employment contract.
Our Chamber has deferred its decisions regarding the addition of up to four months to the length of service during the hearing of reinstatement cases (Supreme Court of Appeals 9th Civil Chamber, October 3, 2005, 2005/16932 E, 2005/31926 K.). Similarly, in our Chamber, the date on which the employee was notified that they would not be hired or the end of the one-month period for starting work is considered the termination date. Therefore, the severance pay ceiling on the termination date must be complied with. Likewise, the wage to be used as the basis for the severance pay must be the wage on the termination date, in accordance with the provisions of Article 14 of the Labor Law No. 1475.
In determining the wage to be used as the basis for severance pay, in addition to the actual wage specified in Article 32 of the Labor Law No. 4857, monetary benefits or benefits that can be measured in monetary terms provided to the employee are also taken into account.Accordingly, bonuses, continuity premiums, fuel assistance, clothing assistance, rent, lighting, service assistance, meal assistance, and similar payments are taken into account in the severance pay calculation. Special health insurance assistance or life insurance contributions provided to the employee also fall under the concept of benefits that can be measured in monetary terms and must be added to the basic severance pay. Although the premium calculated based on sales figures or other data may vary, it should be evaluated within the concept of severance pay in the severance pay calculation.
The protective clothing provided to the employee, towels provided for use at the workplace, soap assistance, incidental overtime, national holidays, general holidays, and weekend leave are not taken into account.
In practice, it is observed that payments are made under the name of travel allowance based on the distance traveled, especially for heavy vehicle drivers and truck drivers. Most often, a fixed wage at the minimum wage level is paid, and the majority of the wage is covered by the determined allowances. It is unacceptable for a truck driver traveling abroad to work only for the minimum wage. In this context, payments made under the name of road allowance must also be taken into account when determining the base salary for compensation.
The decisions of our Chamber are in this direction. (Supreme Court of Appeals 9th Civil Chamber, February 7, 2005, 2005/950 E, 2005/3328 K.)In our decisions, it is accepted that the amount per day, which reflects benefits other than monetary compensation or wages that can be measured in monetary terms, shall be determined by dividing the total payments made in the last year by 365 (9th Civil Chamber. 29.9.2005, 2005/342 E, 2005/31714 K., Supreme Court 9th Civil Chamber, 12.4.1999, 1999/5910 E, 1999/7119 K.). For monetary rights that are not periodic in nature, the amount per day must be determined by dividing the payments made during the year by 365 days.
For example, since the time (road) premium received by a truck driver during the year may vary constantly, it may be difficult to base the calculation on a specific period. On the other hand, it is unlikely that the allowance paid to the employee twice a year during religious holidays is paid for a specific period. In this case, it would be appropriate to divide the annual payment amount by 365. Finally, it is undisputed that monetary assistance paid once a year (such as firewood assistance) will be reflected in the wage-based compensation and will be calculated by dividing the annual amount by 365.
In terms of monetary rights paid regularly and at specific times during the year, severance pay should be calculated based on the last salary.
Since severance pay is calculated based on the employee’s last salary and the averages of salary increases during the year are not taken into account, a similar solution should be sought for salary increases. For example, if the three bonuses received by the employee during the year are less than their previous salary, but the last bonus is paid based on the employee’s last salary, then the bonus to be considered in determining the base salary for severance pay should be this last bonus. Furthermore, it is fair to calculate the final installment by dividing it by the number of days in the period to which the bonus pertains. More clearly, if there are four bonus payments per year, each bonus applies to a three-month period.
Dividing the employee’s increased bonus by the ninety days to which it pertains to find the daily bonus amount would be more in line with the legal rule that severance pay is calculated based on the final salary. The same application can be made for payments such as travel and meal allowances. The amount corresponding to one day should be determined by dividing such payments made to the employee for the last month, assumed to be monthly, by the actual number of days worked. Accordingly, for monetary rights paid periodically and increased during the year, the amount to be reflected in the severance pay base salary can be determined more accurately by dividing the amount by the number of days in the period to which the last payment belongs.
The decisions of our Chamber are also in this direction (Supreme Court 10.10.2008, 2007/27615 E, 2008/26209 K.)For example, if the three bonuses received by the employee during the year are lower than their previous salary, but the last bonus is paid based on the employee’s last salary, then the bonus to be considered when determining the base salary for severance pay should be this last bonus. Furthermore, it is fair to calculate the last installment by dividing it by the number of days in the period to which the bonus belongs. More clearly, if there are four bonus payments per year, each bonus applies to a three-month period. Dividing the employee’s increased bonus by the ninety days to which it relates to find the daily bonus amount would be more in line with the legal rule that severance pay is calculated based on the last salary.
The same application can be made for payments such as travel and meal allowances. The amount corresponding to one day should be determined by dividing such payments made to the employee for the last month, which is assumed to be monthly, by the number of days actually worked. Accordingly, for periodic monetary rights that increase during the year, the amount to be reflected in the base salary for severance pay can be determined more accurately by dividing the amount by the number of days in the period to which the last payment belongs. Our Chamber’s decisions are also in this direction (Supreme Court of Appeals 10.10.2008, 2007/27615 E, 2008/26209 K.).