Even If The Worker Works 1 Hour On General Holidays, He Is Entitled To Full Wages
9th Civil Chamber 2016/20521 E. , 2020/6790 K.
“Case Law Text”
COURT :LABOUR COURT
The appeal of the decision given as a result of the lawsuit between the parties was requested by the defendant’s attorney, 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 necessity was discussed and considered:
JUDGEMENT OF THE COURT
A) Summary of the Claimant’s Request:
The plaintiff’s attorney stated that his client worked at the defendant workplace between 03/01/2006 and 31/03/2014, his last monthly net wage was around 1. 656,00TL, while his daily standard working hours were 08:00-17:00, he continued to work until 19:00 to 20:00 almost 6 days a week, and when he worked in and around Edirne, he worked until 21:00-22: 00, but his overtime and week holiday receivables were not paid, there was a meal and service application at the workplace, he continued to work on all official and religious holidays, but the receivables were not paid to him, he was assigned to Diyarbakır or Batman for a month on average every two months, the 15 TL field premiums that should be paid were paid only twice, and claimed that the balance of 100.00 TL severance pay, overtime receivable, official and religious holiday receivable, week holiday receivable and field premium receivable.
B) Summary of the Defendant’s Reply:
The defendant’s attorney stated that the claims of the plaintiff were time-barred, therefore they filed a statute of limitations defence, contrary to the plaintiff’s claim, the plaintiff’s work was between 08:00 and 17:00 hours 5 days a week; lunch break was given between 12:00-13:00 noon, 15 minutes of rest at 10:00 and 15:00 every day: 15 minutes of rest at 10:00 and 15:00 every day, he did not work on Saturdays according to the work situation,
if the plaintiff had to work overtime for out-of-town duties, he used leave in the following period, all of the plaintiff’s work was done within the legal working periods, all of his work was done within the legal working periods, his overtime work was included in the wage, he did not work on national holidays and general holidays, the client company did not have regular bonus payments, all payments were made to the plaintiff in full, including per diems, and defended the dismissal of the lawsuit.
C) Summary of the Local Court Decision:
The court, based on the evidence collected and the expert report, stated that the plaintiff worked as a welder at the defendant employer’s workplace from 03/01/2006 until 31/03/2014, his employment contract was terminated by the defendant employer on 31/03/2014, the burden of proof that the employment contract was terminated for just cause without severance and notice indemnity was on the defendant employer to prove this issue,
Therefore, it should be accepted that the plaintiff’s employment contract was terminated unfairly by the defendant employer, the employee is entitled to severance pay due to the unfair termination of the employer, therefore, the plaintiff’s claim for severance pay should be accepted, 18. 949,85 TL severance indemnity calculated by the expert, by deducting 7.673,67 TL paid to the plaintiff by the defendant, the balance 11. 286,18 TL severance pay,
the plaintiff worked 3 days a week from 08:00 to 17:00 and 3 days a week from 08:00 to 19:00 during the period he worked at the defendant workplace: 00 hours, when the intermediate rests are deducted, the plaintiff worked 54 hours a week, so he worked 9 hours of overtime a week, overtime wages were not paid, considering the defendant’s objection to the statute of limitations, the overtime wages in the nature of wages in accordance with Article 32/last of the law numbered 4857,
Since the week holiday and holiday general holiday wages are subject to 5-year statute of limitations from the date of entitlement, the defendant’s defence of statute of limitations is justified and appropriate, it was decided to partially accept the lawsuit on the grounds that the holiday general holiday, week holiday and overtime wages from 04/08/2010, which is the beginning of the 5-year period from 04/08/2015, the date of amendment, to 31/03/2014, the date of termination of the contract, can be requested.
D) Appeal
The decision was appealed by the defendant’s counsel.
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 defendant other than those covered by the following paragraph are not relevant.
2) It is a matter of dispute whether the plaintiff worked overtime or not, and if so, whether he received the corresponding wage or not.
The plaintiff has shown two witnesses in order to prove his overtime claim, and it is understood that one of these witnesses … has a case against the same defendant with similar allegations, and therefore has a hostility with the defendant. For the explained reason, the statement of this witness should be approached with extreme caution. The other witness of the plaintiff…. also partially confirmed the overtime claim. It is erroneous for the court to calculate the overtime receivable based on the statement of the hostile witness …, while the calculation of the overtime receivable should be made on the basis of the statement of the non-hostile witness …..
3) In the face of the clear regulation in Article 47 of the Labour Law, it is erroneous to make the calculation based on the hours worked, ignoring the fact that the plaintiff, who is understood to have worked on national and general holidays, is entitled to 1 additional daily wage (monthly fixed wage/30) for each national and general holiday day worked. The employee is entitled to full wages even if he works for 1 hour on national holiday-general holidays.
4) It is also erroneous not to consider that the failure to specify in the judgement whether the receivables are net or gross will cause hesitation in execution, and this has necessitated a reversal.
F) Conclusion:
It was unanimously decided on 01.07.2020 that the appealed decision shall be reversed for the reasons written above, and the prepaid appeal fee shall be refunded to the relevant party upon request.
You can access our other article examples and petition examples by clicking here.