Court Of Cassation Decision On High Equity Discount
T.C Judiciary Court 22nd Civil Chamber Esas: 2019/ 5700 Decision: 2019 / 17173 Date of Decision: 25.09.2019
SUMMARY: In the concrete case, the court stated that a high amount of equitable deduction was made in terms of overtime and week holiday wage receivables. However, it was erroneous not to specify the rate of reduction and to make a large amount of reduction. While a reasonable discount should be made by taking into account the amounts of the receivables awarded in relation to the specified receivable items, it was erroneous to make a judgment by ignoring this issue and required a reversal.
(1475 S. K. art. 14) (4857 S. K. art. 32, 41, 46, 47, 57)
Case and Decision: The appeal of the decision rendered as a result of the lawsuit between the parties was requested by the attorneys for the plaintiff and the defendants, 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 requirements were discussed and considered:
Summary of the Claimant’s Request: The plaintiff’s attorney, stating that the lawsuit is an indefinite receivable lawsuit, claimed that the plaintiff worked at the defendant’s workplace between 17.07.2006 and 04.10.2011 and that he terminated his employment contract rightfully due to non-payment of labor receivables, and demanded severance pay and wages, annual leave, minimum living allowance, overtime, weekends and general holiday receivables.
Summary of Defendant’s Response: The Defendants’ counsel argued that the plaintiff’s employment contract was terminated based on the just cause of absenteeism and requested the dismissal of the lawsuit.
Summary of the Court Decision: The court, based on the evidence collected and the expert report, partially accepted the partial acceptance of the lawsuit on the written grounds, upon the appeal of the attorneys of the parties, with the decision of our Chamber dated 19.11.2014. 2014 dated 19.11.2014, it was ruled that since the severance pay, wage, vacation and minimum living allowance receivables subject to the lawsuit are actually determinable receivables and therefore cannot be subject to an indefinite receivable lawsuit, it is erroneous to make a decision by going into the merits while the lawsuit should be dismissed procedurally due to the lack of legal interest in terms of the aforementioned claims, It was reversed on the grounds that the defendant’s statute of limitations defense against the reform should be evaluated in terms of overtime, week holiday, national holiday and general holiday receivables, and that it was erroneous that the court did not specify the discount rate made in the overtime and week holiday receivables and that it was erroneous to make a discount in an excessive amount. At the end of the retrial, the Court decided to resist against the reversal decision on the grounds that the lawsuit can be filed as an indefinite receivable lawsuit, the statute of limitations objection was evaluated, the reduction made was discretionary and the amount of the reduction can be easily understood when the figures are examined. The decision to resist was appealed by the attorneys of the parties. With the decision of the Civil General Assembly of the Court of Cassation dated 09.04.2019, it was decided that the Court’s decision to resist was accepted as appropriate in terms of the fact that the concrete dispute could be filed as an indefinite receivable case and the statute of limitations defense against the reform could not be taken into consideration, and that the file be sent to our Chamber for the examination of the other appellate objections of the defendants on the merits according to the reasons for reversal explained in the reversal decision of our Chamber, and that the decision to resist was reversed by accepting the appeal objections of the plaintiff’s attorney in terms of the discount made without specifying the rate in the overtime and week holiday receivables.
Appeal The plaintiff and the defendants’ attorneys appealed the decision.
Grounds: 1-According to the writings in the file, the evidence collected and the legal grounds on which the decision is based, it is necessary to reject the other appellate objections of the defendants, which are not covered by the following paragraph.
2-The dispute between the parties is centered on the failure to specify the discount rate made in the overtime and week holiday wage receivables and whether the discount made is exorbitant.
It has become a consistent practice that if the overtime work is calculated for a long period of time and the amount is high, a reasonable discount should be made by the Court of Cassation. However, if the overtime work is based on written documents and employer records instead of witness statements, such a reduction is not made. The discount to be made should be appreciated according to the way the employee works, the organization of the work and the amount of overtime work calculated. A reduction should not be made at a rate that would eliminate the essence of the right.
In the concrete case, the court stated that a high amount of equitable deduction was made in terms of overtime and week holiday wage receivables. However, it was erroneous not to specify the rate of reduction and to make a large amount of reduction. While a reasonable discount should be made by taking into account the amounts of the receivables awarded in relation to the specified receivable items, it was erroneous to make a judgment by ignoring this issue and required reversal.
Conclusion It has been unanimously decided on 25.09.2019 that the appealed decision shall be reversed for the reasons written above, and the prepaid appeal fee shall be refunded to those concerned upon request.
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