Workers Are Not Granted Leave In Lieu Of Work Performed On Public Holidays And General Holidays.
Supreme Court of Turkey
9th Civil Chamber
Case No.: 2015/26859
Decision No.: 2018/84
Date of Decision: January 15, 2018
CLAIMS FOR SENIORITY INDEMNITY, OVERTIME PAY, ANNUAL LEAVE PAY, AND NATIONAL HOLIDAY AND GENERAL HOLIDAY PAY IN THE CONTEXT OF THE TERMINATION OF THE EMPLOYMENT RELATIONSHIP –LEAVE CANNOT BE GRANTED IN EXCHANGE FOR WORK PERFORMED ON NATIONAL HOLIDAYS AND GENERAL HOLIDAYS
SUMMARY: The plaintiff resigned conditionally, stating the reasons. In the resignation letter, he cited health reasons and met the conditions for retirement at the time of termination, except for age. Therefore, the difference in severance pay must be ruled upon. The documents presented by the defendant and bearing the plaintiff’s signature are from 2008 to 2009, the defendant did not submit any documents showing that the plaintiff used leave in lieu of national holidays and general holidays for the years 2010 to 2013, and even if such documents were submitted, they would be invalid. Therefore, the national holiday and general holiday entitlements for the years 2010 to 2013 must be calculated and awarded. The Labor Law provides for free time in lieu of overtime work. If the employee worked on holidays, the corresponding wages must be paid. Granting leave in lieu of such work does not mean that the employee is not entitled to holiday pay. This is because granting free time or leave in lieu of holiday work is not in accordance with the law.
The plaintiff requested a decision ordering the payment of severance pay, overtime pay, annual leave pay, and national holiday and general holiday pay.
The Local Court decided to partially accept the case.
The parties appealed through their attorneys within the judgment period, and the defendant’s attorney requested a hearing; however, pursuant to Article 438 of the Code of Civil Procedure, the request for a hearing was rejected on the grounds of amount, and it was decided that the review would be conducted based on the documents. After the report prepared by the Review Judge was submitted, the file was reviewed, and the necessary discussions and deliberations were made:
SUPREME COURT DECISION
The plaintiff’s attorney claimed that his client worked at the defendant employer’s workplace as a master instructor between September 1, 1995, and September 20, 2013, and most recently as a measurement and evaluation officer, earning a final salary of 1,570.00 TL. The plaintiff’s attorney claimed that the employer had accepted the plaintiff’s letter of resignation and paid him 20,000.00 TL in return, which was paid in installments, and requested that the defendant pay the remaining severance pay, overtime, annual leave, national holiday, and general holiday entitlements.
The defendant’s representative argued that the plaintiff employee could not claim severance pay because he had resigned, that the plaintiff employee’s working hours did not exceed 45 hours per week and therefore he was not entitled to overtime pay, that he had been paid for his work on national holidays and public holidays, and that he was not entitled to annual leave pay, requesting that the case be dismissed.
The court, based on the evidence gathered and the expert report, and considering that the offer to terminate the employment contract between the parties by mutual agreement came from the plaintiff, ruled that the plaintiff was not entitled to severance pay, and that the plaintiff worked overtime, had unused leave, and used vacation leave, the court partially accepted the case and ruled to reject the severance pay and UBGT wage claim and to collect the overtime and leave wage claims.
The parties’ attorneys appealed the decision.
REASONS
1- Based on the documents in the file, the evidence gathered, and the legal grounds on which the decision is based, the appeals of the parties’ attorneys outside the scope of the following paragraphs are unfounded.
2- There is a dispute between the parties as to whether the employment relationship ended with the employee’s resignation.
In general, the right to terminate an employment contract is a disruptive right that grants the authority to terminate the employment contract immediately or after a certain period of time by means of a unilateral declaration of intent directed at the other party. The employee’s right to terminate the employment contract immediately for just cause is regulated in Article 24 of Labor Law No. 4857. The normative regulation of the employee’s notice of termination is addressed in Article 17 of the same law. Apart from this, the law does not specifically regulate the employee’s resignation.
The termination of the employment contract by the employee without a justifiable reason and without giving notice should be considered as resignation. The employment relationship ends when the intention to resign reaches the other party. Although the employer is not obliged to accept the resignation, if the employer does not process the letter of resignation and the employee continues to work at the workplace, it cannot be considered a genuine resignation. However, if, despite the resignation, the parties agree to continue working for a certain period, it should be accepted that the employment contract ends by mutual consent at the end of the agreed period.
Resignation subject to conditions is generally not valid. In the most common form encountered in practice, an employee’s request to leave on the condition that notice and seniority compensation are paid should be considered not as a resignation but as an offer to terminate the contract (rescission agreement).
It is also common for the employee’s intention expressed in the resignation letter to be vitiated. If the employer promises to pay compensation immediately and uses similar pressure to demand that the employee submit a written resignation letter, and the employee complies, there can be no question of a genuine intention to resign. In this case, it must be accepted that the termination was carried out by the employer.
A resignation letter drafted as a result of pressure from the employer cannot be considered valid. Our Chamber accepts that in such cases, the termination was carried out by the employer, but that it is necessary to assess whether the employer’s termination was justified (Supreme Court of Appeals 9th Civil Chamber, July 3, 2007, 2007/14407 E, 2007/21552 K.).
If the employee has justifiable grounds for immediate termination and is about to proceed with termination in an appropriate manner, but their will is compromised and the employer obtains a letter of resignation, it is not correct to recognize the validity of the resignation. In this case, it must be concluded that the employee has justifiably terminated the contract.
Even if the resignation letter is relied upon, in conflicting situations such as the payment of notice and seniority compensation to the employee and the mention of termination by the employer in the notification made to the Turkish Employment Agency, the effect of this conflict on the validity of the resignation must be assessed for each specific case.
If the statement in the resignation letter is of a general nature, there is no legal impediment to the employee specifying the concrete reasons in the petition. In this case, the actual circumstances behind the resignation should also be investigated.
If the employment contract ends with resignation, the employee cannot benefit from the provisions of employment security and is not entitled to notice and severance pay. Since the employee may be required to pay notice compensation to the employer in the event of resignation, resignation-type documents must be handled with great care. Any objection to the signature or additions to the text must be examined strictly from a technical point of view.
Contract provisions and workplace practices stipulating that severance pay shall be paid to the employee even in the event of resignation are valid under Law No. 4857, in which case severance pay shall be calculated in accordance with Article 14 of Law No. 1475, and the severance pay ceiling specified in the said article shall be observed. It should be noted that the severance pay ceiling stipulated in the aforementioned Law is mandatory.
In the specific dispute, the plaintiff resigned conditionally, stating the reasons. As stated in the resignation letter, the plaintiff had met the conditions for retirement, except for age, on the date of termination. Therefore, it is necessary to rule on the difference in severance pay, and it is erroneous to reject it by accepting a partial payment settlement.
3- There is a dispute between the parties as to whether the plaintiff employee is entitled to wages in return for working on national holidays and general holidays.
The Labor Law No. 4857 provides for free time for overtime work. If the employee worked on holidays, the corresponding wages must be paid. Granting leave in return for this work does not mean that the employee is not entitled to holiday pay. Granting free time or leave in return for holiday work is not in accordance with the law.
The expert report on which the ruling is based states that the plaintiff worked on official holiday days (April 23, May 19, and October 29) but that the defendant presented leave documents showing that the plaintiff used leave for the holidays on which he worked, and therefore the plaintiff is not entitled to national holiday and general holiday pay. However, the documents presented by the defendant and bearing the plaintiff’s signature are from 2008 to 2009, and the defendant did not submit any documents showing that the plaintiff used leave in lieu of working on national holidays and public holidays between 2010 and 2013. Even if such documents were submitted, they would be invalid. Therefore, the national holiday and public holiday pay for the years 2010 to 2013 must be calculated and ruled upon. Although the plaintiff’s testimony confirmed that he worked on the specified days, the rejection on the grounds that the work could not be proven is erroneous.
3- There is a dispute between the parties as to whether the plaintiff employee worked overtime.
The expert report on which the judgment is based states that the plaintiff’s work during the week did not exceed 45 hours, but that he was entitled to overtime pay due to his work on Saturdays, and calculations were made accordingly.
The file contains documents showing that the plaintiff used free time in lieu of the overtime he worked on Saturdays. It is erroneous to rule on the claim without evaluating these documents and based on incomplete examination and assessment.
CONCLUSION: It was unanimously decided on 15.01.2018 to REVERSE the appealed decision for the reasons stated above and to refund the advance appeal fee to the relevant parties upon request.