Workers Cannot Be Forced To Work On Holiday
The consent of the employee is required for working on national holidays and general holidays, the employee cannot be forced to work on holidays. The employee who is forced to work may terminate the employment contract for just cause. You can examine the Sample Court of Cassation Decision.
9th Civil Chamber
Principal Number: 2011/33689
Decision Number: 2013/2543
“Case Law Text”
COURT:LABOUR COURT
THE CASE:
Plaintiff requested a decision on the payment of severance pay, notice pay, annual leave pay, overtime pay and national holiday and general holiday pay receivables. The local court ruled the request.
Since the judgement was appealed by the defendant’s lawyer within the time limit, the file was examined and the necessity was discussed and considered after listening to the report prepared by the Examining Judge … for the case file:
JUDGEMENT OF THE COURT
A) Summary of the Claimant’s Request:
The plaintiff’s attorney claimed that the plaintiff started to work in the liver shop of the defendant employer on 8.10.2008, his monthly wage was net 1.500 TL, his employment contract was unfairly terminated by the employer on 13.9.2010, he worked between 10.00-22.00 hours, national holidays and general holidays, he did not use his annual leaves and the corresponding wages were not paid, and requested the collection of severance and notice payments, overtime and national holiday general holiday wages from the defendant.
B) Summary of the Defendant’s Response:
The defendant employer’s representative claimed that the statute of limitations had expired, that there was no overtime work in the workplace, that the plaintiff received minimum wage, that the plaintiff’s employment contract was terminated by himself by not coming to work between 22-24 September, that he had no receivables, and that the lawsuit should be dismissed.
C) Summary of the Local Court Decision:
The court decided to accept the lawsuit.
D) Appeal
The defendant appealed the judgement within the legal period.
E) Grounds:
1- According to the writings in the file, the collected evidence and the legal grounds on which the decision is based, the defendant’s appellate objections other than those covered by the following subparagraphs are not relevant.
2- There is a dispute between the parties regarding the amount of monthly wage paid to the employee. In the first paragraph of Article 32 of the Labour Law No. 4857, in general terms, wage is defined as the amount provided to a person by the employer or third parties in return for a job and paid in money.
As a rule, wage is a periodic payment. Within the limits accepted by the law, it must be paid in accordance with certain and fixed intervals of time and periods determined by the parties by contract. This period is specified as maximum one month in the above-mentioned article of the Law.
The parties to the employment contract may freely determine the amount of the wage within the framework of freedom of contract, provided that it is not below the minimum wage. The fact that the amount of the wage is not clearly stated in the employment contract does not mean that there is no employment contract between the parties. Even in such a case, the wage should be determined according to the second paragraph of Article 323 of the Code of Obligations.
In cases where the wage is not agreed in the employment contract, the amount of the wage is determined by taking into consideration the personal characteristics of the employee, his/her seniority in the workplace or profession, professional title, the nature of the work performed, the type of the employment contract, the characteristics of the workplace, the wages paid to similar workers in that workplace or in other workplaces, customs and traditions.
Article 8 of the Law No. 4857 stipulates that in cases where there is no written employment contract between the employee and the employer, it is obligatory to provide the employee with a document stating the working conditions, basic wage and its supplements, if any, and the time of wage payment within two months at the latest.Article 37 of the same law stipulates that in cases where the wages are paid at the workplace or deposited in a bank account, it is obligatory to give a document in the form of a wage statement to the employee. Such documents, which are duly issued, are in the nature of written evidence from the employer regarding the wage of the employee.
Since a person cannot rely on his own collusion, the employer cannot claim that the document was given in collusion at the request of the employee. However, whether or not such an issue is asserted, the fact of collusion should be investigated by the court ex officio (Court of Cassation 9.HD. 23.9.2008 dated 2007/27217 E, 2008/24515 K.). The fact that the untruthfulness of the information contained in the labour certificate is sanctioned is a situation that increases the proving power of the document. As a rule, the burden of proof on issues such as the amount of wage and its annexes is on the employee. However, at this point, it should not be ignored that Articles 8 and 37 of the Law No. 4857 impose certain obligations on the employer.
The aforementioned rules serve the purpose of preventing informality in labour life as well as assisting the parties to the employment contract in the burden of proof. Although the provision of such a document is in favour of the employer in terms of proof, the fact that the document is not issued and given to the employee may damage the legal guarantees of the employee in terms of wages, insurance premiums, working conditions and similar issues. The issuance of the work certificate and the wage calculation sheet to the employee will also provide significant convenience in terms of determining the date of employment, wage, wage supplements and working conditions, which are mainly occupied by the labour judiciary.
In this respect, during the evaluation of the evidence at the point of proving the wage, it is necessary to investigate whether the employer has issued a document in this regard. In order to pay less tax or insurance premium in working life, it is seen that the wages shown in the employment contract or wage slips do not reflect the reality. In this case, it is important to determine the actual wage.
When there is a suspicion that the wages in the signed payrolls do not reflect the reality considering the issues such as the employee’s seniority, occupational title, the work actually performed, the characteristics of the workplace and the wages paid to the peer workers, the witness statements should be taken into consideration in this regard, and the duration of the employee’s career, the dates he worked at the workplace, the occupational title and the work he actually performed should be reported and the precedent wage should be investigated from the trade unions and the relevant workers’ and employers’ organisations, and a conclusion should be reached by evaluating all the evidence together.
In the concrete case, the wage survey conducted by the court is not sufficient and in line with the above-mentioned principles, the professional seniority of the plaintiff, the job title, the work actually performed, the characteristics of the workplace and the wages paid to peer workers should be investigated methodically and the wage level of the plaintiff should be determined. 3- There is a dispute between the parties as to whether the plaintiff worker is entitled to notice pay.
Although the employment contract is a private law contract that imposes a permanent obligation on the parties, it is possible for any of the parties to terminate the relationship with a statement of will directed to the other party to break the employment contract.
The right of termination is a right that gives the right to terminate the employment contract immediately or after the expiry of a certain period of time and must be directed to the other party. Termination with notice regulated in the article is in question for indefinite-term employment contracts. In other words, in fixed-term employment contracts, the terminating party is not required to notify the other party and grant a grace period. Since the notice of termination has the nature of a right arising from novelty and affects the legal field of the other party, it must be made clearly and distinctly. For the same reason, as a rule, a conditional notice of termination is not valid.
The termination notice need not contain the word “termination”. If the expressions revealing the intention of termination are combined with the act of not continuing to work, it should be accepted that this means termination. Sometimes termination may also occur in the form of a negative action of the employer. Not hiring the employee, confiscation of the automatic pass card can be given as examples. In our Chamber, if the employer unilaterally imposes unpaid leave, it is considered as “termination of the employer” for the employee who does not accept it.
It is a consequence of Article 109 of the Labour Law No. 4857 that the notice of termination must be in writing. However, the written form requirement is not a condition of validity, but a condition of proof. Reaching is the moment when the addressee enters the sphere of dominance.
Notice pay is a compensation payable by the party who terminates an indefinite-term employment contract without just cause and without giving a proper notice period. Accordingly, firstly, if the employment contract has been terminated without just cause as stipulated in Articles 24 and 25 of the Law and if the notice period has not been duly granted as stipulated in Article 17, the notice indemnity must be paid.
Again, although there is a justified reason for termination, in the event that the employee or the employer terminates the employment contract after the period of limitation stipulated in Article 26 has expired, the obligation to pay notice pay arises to the other party. Since the notice indemnity is a compensation to be paid to the other party by the party who terminates the employment contract, it is not possible for the party who terminates the employment contract to be entitled to notice indemnity even if the termination is based on a just cause.
In the event that the employee terminates the employment contract for reasons such as retirement, active military service, marriage, etc. in accordance with the provisions of Article 14 of the Law No. 1475, there is no right to claim notice pay. In the aforementioned terminations, the employer also cannot claim notice pay. In the concrete case, although the court has decided that the plaintiff is entitled to notice compensation, this acceptance is not in accordance with the content of the file.
The defendant witness Selver, who is an employee of the workplace and who is understood to have witnessed the termination, stated that the employer gathered all the workers before the feast and asked them to work on the feast, upon which the plaintiff said that he could not come to work on the feast, that he would rest and left the workplace. As it is understood from the scope of the file, it is understood that the plaintiff left the workplace by refusing the employer’s offer to work on the holiday.
The employee cannot be forced to work on general holidays. The plaintiff, who was forced to work on general holidays, terminated his employment contract for just cause. It is erroneous to decide to accept the claim for notice pay without considering that the party who terminated the employment contract for just cause cannot claim notice pay.
4- There is a dispute between the parties as to whether the plaintiff worker worked overtime.
The employee who claims overtime work is obliged to prove this claim. Rules regarding payrolls are also valid here. The payroll bearing the signature of the employee is conclusive evidence until its forgery is proved. In other words, unless the forgery of the payroll is claimed and proved, it is assumed that the overtime labour receivable appearing on the signed payroll is paid. Workplace records, especially documents showing entry and exit to and from the workplace, and internal correspondence of the workplace are evidentiary evidence for the proof of overtime work.
However, in the event that overtime work cannot be proved by written documents, it is necessary to conclude with the witness statements of the parties. Apart from this, some general facts known by everyone can also be taken into consideration at this point. It should also be investigated whether there is overtime work according to the nature and intensity of the work actually performed by the worker.
In the concrete case, the plaintiff claimed that he worked between 10.00-22.00 every day of the week and that he worked 3 hours overtime daily. The defendant witnesses, who apparently worked at the defendant workplace, stated that the plaintiff worked between 10.00-18.00. Both of the plaintiff witnesses stated that they were not employees of the workplace but neighbours of the plaintiff. Considering that the defendant witnesses are employees of the workplace and they are in a position to know the daily working time of the plaintiff, it is necessary to determine the overtime working time based on their statements, while it is erroneous to determine the overtime working time without taking into account that the plaintiff witnesses who are not employees of the workplace cannot know the daily working time of the plaintiff.
F) Conclusion:
It was unanimously decided on 08.10.2013 that the appealed decision shall be DISMISSED for the reasons written above, and the prepaid appeal fee shall be refunded to the relevant party upon request.
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