Law Firm
Case Number: 2011/33689
Decision Number: 2013/25433
“Judgment Text”
COURT: LABOR COURT
CASE: The plaintiff is seeking a decision regarding the payment of severance pay, notice period, annual leave, overtime, and official holiday expenses. The local court has its own discretion.
In the case file, the investigating judge appointed by the defendant’s attorney…
CASSATION COURT
A) Summary of the Plaintiff’s Claim:
The plaintiff’s attorney is in consultation with the defendant’s attorney regarding the application made to the defendant’s attorney. According to the investigation conducted on October 8, 2008, the net salary was determined by the attorney as 1,500 TL. Additionally, starting from September 13, 2010, during election periods, between 10:00 AM and 10:00 PM, as well as on official holidays and religious holidays, compensation is provided. A) Review of the defendant’s applications regarding the seniority and evaluations of students who did not use their annual leave and whose salaries were not paid, as well as the evaluation of overtime and general holiday days during elections.
B) Summary of the Defendant’s Response:
The defendant’s employer’s representative primarily relies on the statute of limitations, the large number of applications submitted at the workplace, the determination of the minimum wage, the rejection of the application under the target employment contract effective September 22, and the selection made by the representative prior to the employee’s arrival at work.
C) Summary of the District Criminal Court’s Decision:
The court decided to accept the case.
D) Appeal:
The entirety of the defendant’s decision.
E) Rationale:
1- In addition to evidence falling outside the scope of the subparagraphs relied upon by the defendant, there are legally compelling grounds for the decision based on evidence gathered from the documents in the file.
2- The parties are in daily communication with each other. In the 32nd job posting (on the job site numbered 4857), payment will generally be considered for the work the user performs for a job and with the aim of earning money.
As a rule, wages are periodic (recurring) payments. They must be paid at specific and fixed intervals, within reasonable timeframes. This payment period shall be specified as no later than one month.
The parties involved in the employment relationship may decide to pay wages even if they have not been formally agreed upon. This situation will not be specified in the employment contract, and no commercial intent is expected between the parties. In cases of extraordinary wage payments, Article 323, Paragraph 3 shall apply. In cases where wages are not specified in the employment contract, the wage amount is determined by considering the employee’s personal characteristics, seniority at the workplace, professional qualifications, selected individuals, type of work, the candidate’s preferences, and wages targeted in applications for comparable or other positions.
It is certain that a document specifying the base wage and, if applicable, the payment schedule will not be definitively approved by the employer within two months, as stipulated in Article 8 of Law No. 4857. In cases of payment via airline ticket or bank transfer, the calculation of wages is also contingent upon the anticipated delivery of the document.
Legal evidence consists of written documents specifying the fees charged by attorneys for such services. Since an individual cannot rely on their own cooperation, the employer cannot demand the presentation of the document for cooperating employees. However, regardless of whether such an issue arises or not, an investigation into the cooperation must be conducted. (9th Regional Court of Appeal, 09/23/2008, Case No. 2007/27217, Decision No. 2008/24515) When a transaction not included in the document or a fictitious transaction is involved, an attempt is made to develop the document into a work record.
As a rule, the amount of wages and additional payments corresponds to the same months as the worker’s employment. However, this should not be accepted under Law No. 4857. These are individuals who serve the purpose of informality in employment and identify the parties and their roles regarding the days mentioned above. Although this document is designed as a sample for approval, the unforeseen creation of the document may complete sample projects related to sampling, bonuses, work, and sample orders. The regulation of wages through an employment contract, the management of the scope of work, the start date of employment, wages, wage supplements, and
This situation will also provide significant advantages in determining working conditions. In this context, during the evaluation of evidence in the wage verification phase, it should be investigated whether the employer has prepared a document regarding this matter. In this case, determining the actual wage becomes crucial.
When considering the employee’s seniority, title, actual duties, the characteristics of the workplace, and the wages paid to comparable employees, if there is suspicion that the wage listed on the signed pay stub does not reflect the truth, witness statements, the employee’s years of experience in the profession, the dates worked at the workplace, their title, and actual duties should be declared, and inquiries should be made with unions and relevant worker and employer organizations regarding what comparable wages might be. All evidence should then be evaluated together to reach a conclusion.
In this specific case, the wage survey conducted by the court is insufficient; in accordance with the principles outlined above, the plaintiff’s wage level must be determined by examining factors such as the plaintiff’s professional seniority, title, actual duties, the characteristics of the workplace, and the wages paid to comparable employees. There is a dispute regarding whether the employee is entitled to severance pay.
Although an employment contract is a private law contract that imposes ongoing obligations on the parties, either party may terminate the relationship by notifying the other party of their intent to terminate the employment contract.
The right to terminate is a right that grants the authority to terminate the employment contract immediately or after a specified period and must be directed at the other party, thereby creating a destructive novation. In other words, in fixed-term employment contracts, the terminating party is not required to provide notice to the other party. The notice of termination must be clear and unambiguous, as this is a right that creates a legal change and affects the other party’s legal position. For the same reason, a conditional notice of termination is generally invalid.
The word “termination” need not appear in the notice of termination. It must be accepted that statements indicating the intent to terminate, when combined with the act of ceasing work, constitute termination. Sometimes termination may also occur through a negative action by the employer.
Examples include the employee not being hired or the confiscation of an access card. In our view, if the employer unilaterally grants unpaid leave, this is considered “termination by the employer” for the employee who does not accept it.
The requirement for written notice of termination stems from Article 109 of the Labor Code No. 4857. However, the written form is not a validity requirement but a condition of proof. The termination notice takes effect upon reaching the other party. Delivery occurs when the notice enters the recipient’s sphere of control.
Notice pay is compensation that the party terminating an indefinite employment contract without just cause and without providing proper notice must pay to the other party. Accordingly, first, if the employment contract has been terminated without the grounds specified in Articles 24 and 25 of the Law, and if the notice indemnity has not been provided in accordance with the procedure set forth in Article 17, the notice indemnity must be paid. Furthermore, even if there is a valid reason for termination, if the employee or employer initiates termination after the expiration of the notice period provided for in Article 26, the obligation to pay notice pay to the other party arises.
Since the notice period compensation is a compensation that the party terminating the employment contract must pay to the other party, even if the termination of the employment contract is based on a valid reason, the terminating party has no right to claim notice period compensation. If the employee terminates the employment contract for reasons such as retirement, active military service, marriage, etc., they have no right to claim notice pay pursuant to the provisions of Article 14 of Law No. 1475. In the terminations mentioned above, the employer cannot claim notice pay. In the specific case at hand, although the court ruled that the plaintiff was entitled to notice pay, this finding does not align with the contents of the case file.
Selver, a witness for the defendant and an employee at the workplace who reportedly witnessed the dismissal, stated that the employer gathered all employees before the holiday, requested they work throughout the holiday, and that the plaintiff left the workplace after stating he could not work during the holiday and needed to rest. As evident from the scope of the file, the plaintiff left the workplace by refusing the employer’s offer to work during the holiday. An employee cannot be compelled to work on official holidays. The plaintiff, who was forced to work during official holidays, terminated the employment contract for just cause. The party terminating the employment contract for just cause,
It is incorrect to decide to accept the claim for notice pay without considering that the claimant cannot claim notice pay.
4- There is a dispute between the parties regarding whether the plaintiff employee worked overtime.An employee claiming to have worked overtime is responsible for proving this claim. The rules regarding pay stubs also apply here. A pay stub bearing the employee’s signature constitutes conclusive evidence until its forgery is proven. In other words, it is presumed that the overtime pay listed on the pay stub has been paid, until it is alleged and proven that the pay stub is forged. Workplace records, particularly documents showing entry and exit times and internal communications, serve as evidence to prove overtime work.
However, if overtime work cannot be proven through written documents, a conclusion must be reached based on the parties’ witness statements. Additionally, certain general facts known to everyone may also be considered at this point. Whether overtime was worked must be determined based on the nature and intensity of the work actually performed by the employee. In the specific case, the plaintiff claimed to have worked every day of the week between 10:00 a.m. and 10:00 p.m. and to have performed 3 hours of overtime per day.
The defendant’s witnesses, who are understood to have worked at the workplace, stated that the plaintiff worked between 10:00 and 18:00. Both of the plaintiff’s witnesses stated that they were not employees of the workplace but rather the plaintiff’s neighbors. Considering that the defendant’s witnesses were employees of the workplace and were in a position to know the plaintiff’s daily working hours, the overtime hours should have been determined based on their statements; however, determining the overtime hours without taking into account that the plaintiff’s witnesses, who were not employees of the workplace, could not have known the plaintiff’s daily working hours is incorrect.
F) Conclusion: On October 8, 2013, by unanimous decision, it was ruled to overturn the appealed decision for the reasons stated above and to refund the previously paid appeal fee to the relevant party upon request.