The employer who employs the employee during the week break is obliged to give the employee 1.5 days of training for the week break. You can review the sample Supreme Court Decision.
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Part Number: 2016/7708
Decision Number: 2019/18054
“text of jurisprudence”
TRIBUNAL : EMPLOYMENT TRIBUNAL
It became clear that the decision made as a result of the lawsuit between the parties was requested by the defendant’s deputy to examine the appeal, and the appeals were within the deci-sion of the appeal requests. After hearing the report prepared by the Examining Judge for the case file, the file was examined, discussed and considered as necessary:
THE DECISION OF THE SUPREME COURT
A) Summary of the Plaintiff’s Request:
The deputy plaintiff requested the defendant to collect severance, notice compensation and wages, overtime pay, national holiday general holiday pay, week holiday pay and annual leave pay from the defendant, claiming that his client worked as a transport driver and purchasing staff at the defendant’s workplace from 17/10/2007 to 14/03/2014, and that his employment contract was terminated unfairly and without notice and in bad faith by the defendant.
B) Summary of Respondent’s Response:
The defendant’s counsel, plaintiff’s started on 21/11/2007, in the history of 21/001/2008 quit of his own accord, and again a second time in the history of 16/04/2009 left of his own accord into that absence will receive a fee as claimed in the petition, it uses the permissions of annual leave, the payment of the fees of his work for the holidays, weeks of use, the study of religious holidays, arguing that a dismissal has asked for.
C) Summary of the Decision of the Local Court:
Based on the expert report and the evidence collected by the court, the plaintiff of the defendant in the workplace two semesters, a total of 5 years, and 28 working days in the workplace, up to and witnessed a contraction of employment by the employer terminated without notice, and severance pay defendant the right to demand unfair on the grounds of the birthplace of the plaintiff’s understood, it was decided to partial acceptance of the case.
D) Appeal:
The decision was appealed by the defendant’s deputy.
E) Justification:
1-According to the articles in the file, the evidence collected and the legal reasons on which the decision is based, the defendant’s appeals that fall outside the scope of the following paragraphs are not in place.
2-There is a dispute between the parties regarding the decalculation of the week break fee.
46 of the Labor Code No. 4857. in accordance with the second paragraph of the article, the employee’s wages are paid in full without a provision for work on the day of the non-working week break. Although the laws do not regulate how the wage of the employee working during the week break will be calculated, the opinion has been adopted that the work done by our Department during the week break will be considered overwork, and accordingly, the wage should be paid with a fifty percent increase (Supreme Court 9.H.D. 23.5.1996 day 1995/37960 E, 1996/11745 K.). Accordingly, if it was worked during the week break, in addition to one evmiye, which should be paid without working allowance, the equivalent of the work should also be paid as one and a half evmiye.
The week break fees are calculated on the basis of the working period fee. It would not be correct to calculate the final fee. In this case, it is not enough to know the last wage of the employee for the calculation of week break wages. The amount of workers’ wages during the requested period should also be determined. If the employee’s wage for previous periods cannot be determined, the ratio of the known wage to the minimum wage is made and the determination of the unknown wage accordingly is accepted by our Department. However, in cases where the employee is promoted during his/her work at the workplace and receives various titles or has recently benefited from a collective bargaining agreement, it would not be correct to take into account the ratio of the last known wage to the minimum wage in terms of past periods. In such cases, a fee survey should be conducted for unknown periods from the relevant professional organizations and the other evidence in the file should be evaluated together and concluded.
In cases where wages are paid per piece or according to the amount of work performed, a calculation should be made by dividing the sum of wages earned during the payment period by the number of days worked. In terms of workplaces where the percentage procedure is applied, the total of the wages received by the employee that week is divided by six and the holiday pay is obtained. In the form of work in which a percentage or part-time wage payment is envisaged, the week break wage should be calculated in accordance with the incremental part of the established daily wage.
In a concrete dispute, since 1 evmiye, which must be paid by the Court without working in terms of working week break days, is paid within a monthly fee, the receivable must be settled by calculating 1.5 evmiye for unpaid week break, while it is incorrect to decide on the erroneous expert report calculating 2.5 evmiye.
3-In the expert report based on the judgment of the court, the national holiday general holiday fee that the plaintiff deserves has been calculated as a net of 855.15 TL. On the grounds of the court’s decision, it was announced that a reasonable discount of 1/3 of this loan was made based on presumption, and accordingly, it is erroneous to judge that TL 683.47, while a net of TL 570.10 should be ruled on.
4-It is important that the provision does not specify whether the amounts specified are net or gross.of 297/2. it is contrary to the article and it is not thought that it will lead to hesitation in execution, which also required distortion.
F) The result:
It was unanimously decided on 14.10.2019 that the appealed decision should be OVERTURNED for the reasons written above, and the appeal fee received in advance should be returned to the relevant person upon request.