Workers Cannot Work On Week Holidays
The employer who employs the employee on week holidays is obliged to give the employee 1.5 days’ wages for the week holiday. You can examine the Sample Court of Cassation Decision.
Civil Chamber
Principal Number: 2016/7708
Decision Number: 2019/18054
“Case Law Text”
COURT :LABOUR COURT
The appeal of the decision given as a result of the lawsuit between the parties was requested by the defendant’s attorney, and it was understood that the appeal requests were in due time. After listening to the report prepared by the Examining Judge for the case file, the file was examined and the necessity was discussed and considered:
JUDGEMENT OF THE COURT
A) Summary of the Claimant’s Request:
The plaintiff’s attorney claimed that his client worked as a transport driver and purchasing personnel in the defendant’s workplace from 17/10/2007 to 14/03/2014, that his employment contract was terminated by the defendant unfairly and without notice and in bad faith, and requested the collection of severance and notice indemnities and wages, overtime wages, national holiday general holiday wages, week holiday wages and annual leave wages from the defendant.
B) Summary of the Defendant’s Response:
The defendant’s attorney argued that the plaintiff started to work on 21/11/2007, left the job voluntarily on 21/001/2008, entered the job for the second time on 16/04/2009 and left again voluntarily, that there is no wage claim as claimed in the lawsuit petition, that he used his annual paid leave, that he was paid for his overtime work, that he used his week holidays, that he did not work on religious holidays, and requested the dismissal of the lawsuit.
C) Summary of the Local Court Decision:
The court, based on the evidence collected and the expert report, decided to partially accept the lawsuit on the grounds that the plaintiff worked in the defendant’s workplace for a total of 5 years and 28 days in two periods, and that the plaintiff’s right to claim severance and notice pay arose since it was understood that the employment contract was terminated unfairly and without notice by the defendant employer due to downsizing in the workplace.
D) Appeal
The decision was appealed by the defendant’s counsel.
E) Grounds:
1-According to the writings in the case, the collected evidence and the legal grounds on which the decision is based, the appellate objections of the defendant other than those covered by the following subparagraphs are not relevant.
2-There is a dispute between the parties regarding the calculation of week holiday pay.
Pursuant to the second paragraph of Article 46 of the Labour Law No. 4857, the wage of the employee is paid in full without any work for the week holiday day not worked. Although the calculation of the wage of the employee working on week holidays is not regulated by the law, our Chamber has adopted the view that the work done on week holidays will be considered as overtime work and accordingly, the wage should be paid with a fifty percent increase (Court of Cassation 9.H.D. 23.5.1996 dated 1995/37960 E, 1996/11745 K.). Accordingly, if the employee worked during the week holiday, the wage for the work should be paid as one and a half wages in addition to the one wage that should be paid without any remuneration for the work.
Week holiday wages are calculated over the wage of the period worked. It would not be correct to calculate according to the last wage. In this case, it is not sufficient to know the last wage of the worker for the calculation of week holiday wages. The amount of the worker’s wages during the period subject to the request must also be determined. If the wages of the worker for the past periods cannot be determined, the Chamber also accepts the determination of the unknown wage accordingly by making the ratio of the known wage to the minimum wage.
However, it would not be correct to consider the ratio of the last known wage to the minimum wage in terms of the past periods in cases such as the employee’s promotion to various titles during his employment at the workplace or benefiting from the collective labour agreement in recent periods. In such cases, wage research should be made from the relevant professional organisations for the unknown periods and the other evidence in the file should be evaluated together and a conclusion should be reached.
In workplaces where wages are paid per piece or according to the amount of work performed, the calculation should be made by dividing the total wages earned within a payment period by the number of days worked. İn terms of workplaces where the percentage method is applied, holiday pay is obtained by dividing the total wages earned by the employee that week by six. In the workplace where the percentage method or piecework wage payment is foreseen, the week holiday pay should be calculated according to the increased part of the daily wage.
In the concrete dispute, since the Court has paid 1 wage which should be paid without working in terms of week holiday days, it is inappropriate to make a decision based on the erroneous expert report calculating over 2.5 wages, while the receivable should be calculated over 1.5 wages for the unpaid week holiday.
3- In the expert report taken as the basis of the judgement by the court, the national holiday and general holiday wage earned by the plaintiff was calculated as net 855,15 TL. In the reasoning of the court’s decision, it was explained that a reasonable discount of 1/3 based on the presumption was made from this receivable, and accordingly, it is erroneous to award 683.47 TL, while the net 570.10 TL should be judged.
4- Failure to specify whether the amounts awarded are net or gross in the judgement is contrary to Article 297/2 of the CCP and not considering that it will cause hesitation in execution has also required a reversal.
F) Conclusion:
It was unanimously decided on 14.10.2019 that the appealed decision shall be reversed for the reasons written above, and the prepaid appeal fee shall be returned to the relevant party upon request.
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