If A Female Employee Who Has Given Birth Does Not Use Her Breastfeeding Leave, She May Be Required To Pay The Breastfeeding Leave Wage At An Increased Rate
Republic of Turkey Supreme Court 22nd Civil Chamber Case No: 2015/16933
Decision No: 2017/19050
Decision Date: 09/25/2017
Supreme Court Decision
COURT: Labor Court
CASE TYPE: CLAIM
The decision rendered in the case between the parties was appealed by the plaintiff’s attorney.
It was determined that the appeal was filed within the prescribed time limit. After hearing the report prepared by the Examining Judge …
for the case file, the file was examined, and the necessary discussions and deliberations were made:
SUPREME COURT DECISION
Summary of the Plaintiff’s Claim:
The plaintiff’s attorney stated that their client worked as a branch sales manager at the defendant’s workplace, and although the working hours were
were 09:00-18:00, she arrived at the workplace at 08:00-08:30 and worked until 20:30 or later, that she was not paid overtime, and that during her maternity leave, her breastfeeding break was set by the employer
was set between 12:00-14:30 instead of 12:30-13:30, and that she was unable to use her breastfeeding break on 3 or 4 occasions due to customer appointments and company meetings. The plaintiff’s attorney requested that the defendant be ordered to pay overtime wages and breastfeeding break wages.
Summary of the Defendant’s Defense:
The defendant’s representative argued that the plaintiff worked on a salary plus bonus basis, that overtime was included in her pay, that she used 9 months of breastfeeding leave in addition to 3 months of maternity leave, and that there was no provision stating that her pay would be paid if she did not use her leave,
and therefore requested that the case be dismissed.
Summary of the Court’s Decision:
The court ruled that the plaintiff’s working hours were determined by herself and that overtime work up to 270 hours should be considered part of her salary. It also ruled that the plaintiff worked according to a salary + bonus system
and received variable bonuses from the employer based on the results of her work. No document or statement reflecting that she worked more than 270 hours was found in the file. Furthermore,
although the plaintiff worker stated that she could not use her maternity leave and claimed compensation for it, according to the Supreme Court of Appeals 9th Civil Chamber’s decision dated 01/02/2012,
2010/33549-2012/2569, there is no rule in the Labor Law stipulating that an additional wage shall be paid to the worker if maternity leave is not granted, and the sanction is stipulated in Article 104 of the Labor Law
, which regulates the imposition of a fine on the employer. Therefore, even if the plaintiff was not granted breastfeeding leave, she cannot claim compensation for it, and the case was dismissed on this basis.
Appeal:
The decision has been appealed by the plaintiff’s attorney.
Reason:
1-Based on the documents in the file, the evidence gathered, and the legal grounds on which the decision is based, the plaintiff’s appeals outside the scope of the following clause are unfounded.
2-There is a dispute between the parties as to whether the plaintiff is entitled to breastfeeding leave.
Article 74/7 of Labor Law No. 4857 states: “Female employees are granted a total of one and a half hours of breastfeeding leave per day to breastfeed their children under one year of age.
Article 74/7 of Labor Law No. 4857 stipulates that “Female employees shall be granted a total of one and a half hours of breastfeeding leave per day to breastfeed their children under the age of one. The employee herself shall determine the hours during which this period shall be used and how it shall be divided. This period shall be counted as part of the daily working hours.”
Article 104 of Law No. 4857 also stipulates that a fine shall be imposed if the employer acts in violation of the provisions of this article regarding the organization of work.
Article 104 of Law No. 4857 also stipulates that if the employer acts contrary to the provisions of this article regarding the organization of work, a fine shall be imposed, thereby ensuring the use of breastfeeding leave
is secured through administrative sanctions.
Regarding breastfeeding leave, our previous opinion was clarified by our Chamber’s decision dated 13.06.2016, No. 2015/12878, No. 2016/17527, which states that “Article 69/3 of Labor Law No. 4857 stipulates that ‘Night work for employees cannot exceed seven and a half hours
hours,” there is no legal regulation stipulating that night work must be paid at an overtime rate. However, our Chamber’s established case law has clarified this situation and accepted that overtime worked at night must be paid at an overtime rate. It has been assessed that a similar interpretation regarding breastfeeding leave is more equitable and … and in line with the purpose of the Law
and the legislator.
The aforementioned decision states, verbatim: “In accordance with the law, female employees are entitled to 1.5 hours per day (although the duration may be regulated between the parties in favor of the employee),
is not at the discretion of the employer. Pursuant to Article 74/7 of Labor Law No. 4857,
the hours during which this time is taken and how it is divided are determined by the employee. If the employee is required to use breastfeeding leave but is not granted it,
it is necessary to determine the unused period and calculate it based on a 50% premium wage. It was decided to overturn the ruling on the grounds that this interpretation is more in line with Article 50/2 of the Constitution and the spirit of Law No. 4857,
adopting a purposive interpretation.
In the specific dispute, the period during which the plaintiff was unable to use her breastfeeding leave should have been determined and calculated at 50% premium pay, but the rejection of the claim based on the written reasoning was incorrect and required reversal.
Result:
The appealed decision was REVERSED for the reasons stated above, and it was unanimously decided on 09/25/2017 that the appeal fee collected in advance shall be refunded to the relevant party upon request.