Violation Of The Right Of Property Due To Non-Payment Of The Worker’s Overtime Work Wage
Events
The applicant’s employment contract was unilaterally terminated by the employer. The employer paid the applicant severance pay, notice pay and annual leave payable to the applicant.
Applicant filed a lawsuit for compensation against the employer before the labour court. In his statement of claim, he stated that his severance pay, notice pay and annual leave pay were underpaid and that he was not paid his overtime wages at all.
Based on the statements of the witnesses and the expert report, the labour court concluded that the applicant worked 260 hours of overtime per year and accepted the case in terms of overtime pay. Considering the seventh paragraph of Article 41 of the Law No. 4758 and the second paragraph of the Regulation on Overtime Work and Working for Excessive Periods Regarding the Labour Law (Regulation) in force at the time of the overtime work, the labour court concluded that the employer was required to obtain the approval of the applicant at the beginning of each year regarding overtime work and accepted that the payment of wages for overtime work after the first year was obligatory since the employer could not prove that the applicant obtained the approval of the employer at the beginning of each year.
On the other hand, the regional court of appeal, based on the amended version of the second paragraph of Article 9 of the Regulation dated 25/8/2017, stated that there is no requirement to obtain approval at the beginning of each year and that the approval given by the applicant when signing the service contract is valid -unless revoked- and dismissed the case by revoking the decision of the labour court.
Allegations
The applicant claimed that his right to property was violated due to non-payment of overtime labour wages.
Assessment of the Court
In the decisions of the trial courts, Article 41 of the Law No. 4758 stipulates that the approval of the employee must be obtained for working overtime hours. In the second paragraph of Article 9 of the Regulation issued based on Article 41 of the Law No. 4758, while it was regulated that this approval must be obtained in writing from the employees at the beginning of each year by the employer who needs overtime work, with the amendment that entered into force on 25/8/2017, the requirement of obtaining approval at the beginning of each year was abolished, and it has been sufficient to give approval during the conclusion of the employment contract.
It is seen that the approval requirement in the seventh paragraph of Article 41 of Law No. 4758 and in both versions of Article 9 of the Regulation is for overtime work. There is no provision in the aforementioned rules that would mean that the approval of overtime work would be deemed as a waiver of overtime wages.
Although there is no clarity in the decision of the regional court of appeal, it has been observed that the applicant’s approval in the service contract includes the acceptance that the applicant’s approval in the service contract includes not demanding any additional fee for overtime work other than the actual fee. As a rule, the right to property guaranteed under Article 35 of the Constitution does not prohibit the owner from waiving the overtime wage. Therefore, not awarding overtime wages in favour of the employee based on the fact that the employee has accepted in the employment contract that the compensation for overtime work is included in the main wage does not violate Article 35 of the Constitution in principle.
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However, in cases where the overtime work of the employee is not in accordance with the law, it cannot be inferred that the overtime wage is waived based on the existence of a prior consent. For the waiver to be valid, the will to waive must be clear and the consequences must be reasonably foreseeable for the person, as well as the minimum procedural safeguards must be provided, and there must be no overriding public interest that renders the waiver of the right illegitimate.
The legislator and administrative bodies -based on the authority granted by the law- have introduced certain mandatory provisions in order to protect the interests of the employee, who is in a relatively weak position vis-à-vis the employer. In this context, in the seventh paragraph of Article 41 of the Law No. 4758, overtime work without the consent of the employee is strictly prohibited. In addition, the secondary regulations introduced the obligation to obtain the consent for overtime work at the beginning of each year and in writing. The legislative provision stipulating that the approval must be obtained at the beginning of each year remained in force until 25/8/2017. Accordingly, considering the legislation before 25/8/2017, it is understood that overworking the employee without obtaining his/her approval at the beginning of the year would constitute a violation of the mandatory rules.
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In the concrete case, the applicant was overworked between 1/4/2008 and 29/5/2015 during the period when the approval must be obtained at the beginning of each year. Therefore, according to the legislation in force during the said period, the overtime work of the applicant outside the first year constituted a violation of the mandatory provisions. Even if it is accepted that the applicant consented to overtime work without demanding a fee, it cannot be said that this consent also covers overtime work performed in violation of the mandatory provisions. The waiver of the overtime wage of the person who has been overworked in violation of the mandatory provisions contradicts the overriding public interest in the protection of labour interests.
The approach in the decision of the regional court of appeal ignores the fact that there was a condition of approval according to the legislation in force at the time the applicant was overworked. Although the legislation that entered into force on 25/8/2017 considers the approval given when signing the labour contract for overtime work sufficient, it does not legalise the overtime work performed in the past without approval at the beginning of each year. This interpretation of the regional court of appeal is not foreseeable and does not take into account the fact that accepting the waiver of the rights arising from working in violation of the mandatory provisions of the labour law contradicts the public interest.
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Consequently, it is concluded that the interpretation of the regional court of appeal that the applicant’s waiver in the employment contract includes the rights he obtained in return for his employment in violation of the mandatory provisions of the legislation is not foreseeable. This assessment of the regional court of appeal, which constituted a grave error, caused the applicant to be subjected to an immeasurable burden and led to a serious imbalance between the interests of the employer and the employee, thus resulting in a violation of the positive obligations of the state stipulated by Article 35 of the Constitution.
The Constitutional Court decided that the right to property was violated for the reasons explained.
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