Court Of Cassation Decision On The Burden Of Proof
T.C Judiciary Court of Appeal 9th Civil Chamber Esas: 2015/ 34918 Decision: 2019 / 19490 Date of Decision: 11.11.2019
JUDICIARY DECISION
COURT :LABOR COURT
The appeal of the decision given as a result of the lawsuit between the parties was requested by the attorneys of the parties, 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, the necessity was discussed and considered:
JUDGMENT OF THE COURT
A) Summary of the Claimant’s Request:
The plaintiff stated that his client worked from 18/04/2009 until 31/01/2012, that he was an international truck driver, that his last wage was the minimum wage plus voyage premium, that he made 2-3 trips per month, that he received 550 Euros per trip for European countries and 650 Euros per trip for England, He declared that his employment contract was terminated unfairly, that he received a salary of 2000 TL, that he was an interpreter, and requested and sued that 1300 TL, including different severance and notice pay, overtime, week holidays, general holidays, different leave pay, and underpaid salary and allowances receivables, be taken from the defendant and given to his client.
B) Summary of the Response of the Defendant’s Attorney:
The defendant requested the dismissal of the lawsuit.
C) Summary of the Trial Process and Local Court Decision:
The court decided to partially accept the plaintiff’s lawsuit since it was seen that the plaintiff was unfairly dismissed at the end of the examination made according to the witness statements, the evidence collected, the expert report and the scope of the file, and it was seen that the plaintiff was entitled to notice compensation, and although it was fixed with the witness statements that the plaintiff worked on general holidays and did not use his annual leaves, it was not sufficiently proved by the defendant.
D) Appeal:
The decision was appealed by the attorneys of the parties within due time.
E) Grounds:
1- According to the writings in the case, the evidence collected and the legal grounds on which the decision is based, the appellate objections of the parties outside the scope of the following paragraphs are not relevant.
2-There is a dispute between the parties as to whether the plaintiff is entitled to the campaign premium receivable.
The plaintiff employee claimed that his per diems were underpaid by €100 for each expedition since 2009 and demanded the collection of the underpaid per diems due to the deduction made from the expedition premium, the plaintiff witnesses confirmed the claim and the defendant confirmed this claim.
The court rejected this claim without any justification.
From the examination of the expert report taken as basis for the judgment; It is understood that the burden of proof that the wages were paid belongs to the defendant party, and when the transportation cost reports, payment receipts, petitions for offsetting from the advance payment, which show that the requested wage receivable was paid, were examined, it was reported that no definite determination could be made that the plaintiff’s voyage premiums were underpaid.
In the file of the decision of the 9th Civil Chamber of the Court of Cassation dated 14.12.2015 and numbered 2015/ 21937 Esas 2015/35379 Karar and other precedent files; Bakırköy 12th Labor Court decided to reject the claim for the voyage premium receivable on the grounds that the deduction in question has been applied since 2009 and the plaintiff continued to work in this way, and that the application has become a workplace condition. Labor Court’s decision dated 12.11.2012 and numbered 2011/356 Esas 2012/587 Decision and that no calculation will be made regarding the request, since this case file is a precedent.
The aforementioned local court decision was reviewed on appeal by our Chamber and with the decision of the 9th Civil Chamber of the Court of Cassation dated 27.11.2014 and numbered 2013/1940 Esas 2014/35874 Karar, in summary, “Every fundamental change made against the employee during the period of the law numbered 4857 must be made in writing in accordance with Article 22. It cannot be accepted that the change made against the employee has become a condition of the workplace due to the change made outside the procedure in Article 22, therefore, the information and documents in the file should be evaluated and the claimant’s claim, if any, should be ruled”.
In the face of these explanations, it is erroneous to reject the plaintiff’s differential allowance requests with the written justification, while the information, documents and statements in the file should be taken into consideration.
3- It is erroneous to consider the stamp tax rate as 0.66% erroneously, while the stamp tax rate should be taken into account as 7.59% when calculating from the calculation root and additional reports in the file.
F) Conclusion:
It was unanimously decided on 11.11.2019 that the appealed decision shall be DISMISSED for the reasons written above, and the prepaid appeal fee shall be returned to the relevant party upon request.
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