Failure To Grant Breastfeeding Leave To Female Employees May Result In Demands For Increased Breastfeeding Leave Pay
Republic of Turkey
Supreme Court of Appeals
22nd Civil Chamber
Case No.: 2015/16933
DECISION NO: 2017/19050
DATE OF DECISION: 9/25/2017
>>IF A WOMAN EMPLOYEE WHO HAS GIVEN BIRTH IS NOT GRANTED “BREASTFEEDING LEAVE,” SHE MAY REQUEST BREASTFEEDING LEAVE PAYMENT INCREASED BY 50%.
As a result of the case heard between the parties, the decision was appealed by the plaintiff’s attorney, and it was determined that the appeal was filed within the 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:
DECISION
The plaintiff’s attorney stated that his client worked as a branch sales manager at the defendant’s workplace, that although the working hours were 09:00-18:00, she arrived at work at 08:00-08:30 and worked until 20:30 or later, that overtime pay was not paid, and that during her maternity leave, her breastfeeding break was set for 12:00-14:30 instead of the lunch break between 12:30-13:30 as stipulated by the employer, and that she was unable to take her breastfeeding break on 3 or 4 occasions due to customer appointments and company meetings. She requested that the defendant be ordered to pay overtime wages and breastfeeding break wages.
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 for her pay to be paid if she did not use her leave, and therefore requested that the case be dismissed.
The court ruled that the plaintiff’s working hours were determined by herself and that overtime up to 270 hours should be considered included in her salary; that the plaintiff worked on a salary + bonus basis and received variable bonuses from her employer based on her performance; that no document or statement reflecting that she worked more than 270 hours was found in the file; Furthermore, although the plaintiff claimed that he was unable to use his breastfeeding leave and requested 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 provision in the Labor Code stipulating that an additional wage shall be paid to the worker if maternity leave is not granted. The sanction is regulated in Article 104 of the Labor Code, which provides for the imposition of a fine on the employer. Therefore, even if the plaintiff was not granted maternity leave, the plaintiff cannot claim compensation for this reason, and the case was dismissed.
The decision was appealed by the plaintiff’s representative.
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 maternity leave.
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 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 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 that the use of breastfeeding leave is subject to administrative sanctions.
Regarding breastfeeding leave, our previous opinion was clarified by our Chamber’s decision dated 13.06.2016, No. 2015/12878, 2016/17527, which stated that “Article 69/3 of Labor Law No. 4857 states that ‘Night work for employees cannot exceed seven and a half hours, there is no legal regulation stipulating that night work shall be paid at an increased rate. However, our Chamber’s established case law has clarified this situation and accepted that overtime worked at night must be paid at an increased rate. It has been assessed that a similar interpretation in the case of breastfeeding leave is more equitable and … and more in line with the intention of the legislator.
The aforementioned decision states, verbatim:
“In accordance with the law, granting female employees 1.5 hours per day for breastfeeding (although the duration may be adjusted between the parties in favor of the employee) is not at the discretion of the employer, and pursuant to Article 74/7 of Labor Law No. 4857, of the Labor Law No. 4857, and In the event that the employee is required to use breastfeeding leave but is not granted such leave, it is necessary to determine the duration of the leave not granted and calculate the amount due at 50% above the regular wage. The court ruled that this interpretation is more in line with Article 50/2 of the Constitution and the spirit of Law No. 4857, based on a purposive interpretation.
In the specific dispute, since the period during which the plaintiff was unable to use her breastfeeding leave was determined and the calculation should have been made based on 50% increased wages, the rejection of the claim with the written justification was incorrect and required reversal.
CONCLUSION: The appealed decision is REVERSED for the reasons stated above. If requested, the advance appeal fee shall be refunded to the relevant party. This decision was made unanimously on September 25, 2017.
T.C.
COURT OF CASSATION
9th CIVIL CHAMBER
CASE NO: 2017/4543
DECISION NO: 2017/7375
DATE OF DECISION: 04/27/2017
The plaintiff requested a decision ordering the payment of severance pay, notice pay, national holiday and general holiday pay, leave pay, overtime pay, holiday eve pay, and maternity leave pay.
The local court decided to partially accept the case.
As the parties appealed through their attorneys within the judgment period, the case file was reviewed after hearing the report prepared by the Review Judge, and the necessary discussions and deliberations were made:
DECISION
The plaintiff’s attorney stated that the plaintiff worked as a Human Resources Training Officer at the defendant’s workplace from May 1, 2008, until the date of termination of the employment contract, that the employer terminated the plaintiff’s employment contract on April 15, 2013, in accordance with Article 18 of the Law, that the termination form was made to be signed by the plaintiff without even hearing his defense, that the plaintiff issued a warning on 04/16/2013 and requested the payment of his rights from the employer, that instead of paying these rights, the employer issued a warning letter against the plaintiff, requesting him to report his excuse for absence, otherwise his employment contract would be terminated in accordance with Article 25 of the Labor Law Article 25 of the Labor Law, that his last net salary was 2,415.00 TL, that his annual leave was not granted, that he worked from 07:45 in the morning until 23:30 at night, that his overtime pay was not paid, that he was not paid for working in the afternoons on national holidays, public holidays, and days before holidays, that the employer prevented the plaintiff, who gave birth during the employment period, from taking maternity leave, and that he was not paid for this work. He requested that the defendant be ordered to pay him his notice and seniority compensation, annual paid leave, overtime, holiday work, and maternity leave wages.
The defendant’s representative stated that the employment contract was terminated at the plaintiff’s own will, that there was no termination of the employment contract by the company, that medical reports were obtained due to health problems, that she was expected to start work on 15/04/2013, that when contacted, she stated that she could not start work due to traffic, that this did not constitute a valid reason, so an absence record was kept, that the plaintiff came to work on 04/16/2013 but stated that he could not work due to health reasons, that during the termination process, a written statement was requested, that he refused to make a statement and left the workplace, No termination procedure was carried out so that he would not suffer any loss of rights. A warning letter was issued to the plaintiff requesting him to submit a report or explain his valid reason. On the same day, the plaintiff issued a warning letter stating that he had terminated his employment contract on 16/04/2013 for valid reasons. The notice of the 13th Notary Public, numbered 12459, was served on 18/04/2013, and the response notice of the 35th Notary Public of Beyoğlu, issued on 26/04/2013, was sent, that he was not entitled to severance pay because he had terminated the employment contract himself, that the conditions for just cause termination did not exist, that he had used his annual leave entitlement, that his working conditions had not been changed, that his conditions had not been made more difficult, that improvements had been made in similar conditions and circumstances for his co-workers, that his requested breastfeeding breaks had been granted, that his claims of overtime did not match the PDKS records, that the plaintiff had been compensated for overtime worked in the early years, either through leave or financially, and that the case should be dismissed.
At the end of the trial conducted by the court, it was determined that the plaintiff’s date of termination was 04/15/2013, the reason for termination was stated as Article 18 of Law No. 4857, and the name and signature of … appeared in the human resources approval section. The plaintiff’s notice of termination of the employment contract dated 04/16/2013 was deemed ineffective as it was submitted after the fact, and the employment contract was terminated by the employer on 04/15/2013. that he is entitled to severance pay and notice pay, that he used his annual paid leave, that Article 6 of the employment contract states that overtime is included in the salary, that personnel entry and exit records and overtime records were submitted, that the plaintiff did not submit any written documents regarding this claim, that according to the calculations made, the plaintiff did not work more than 270 hours of overtime per year, but according to the records, he worked on public holidays, There is no provision in Law No. 857 stating that breastfeeding leave shall be granted in bulk or paid as wages; therefore, since it cannot be compensated as wages, the plaintiff is not entitled to breastfeeding leave. For this reason, the claim was partially accepted, and it was decided to collect the seniority and notice compensation and holiday wages, but to reject the claims for leave, overtime, and breastfeeding leave.
The decision has been appealed by the parties’ representatives.
Reason:
1. Based on the documents in the file, the evidence gathered, and the legal grounds on which the decision is based, the defendant’s appeal is unfounded in its entirety, and the plaintiff’s appeal is unfounded except for the following clause.
2. According to Article 74 of Law No. 4857, female employees are granted 1.5 hours of breastfeeding leave per day to breastfeed their children under the age of 1. The employee herself determines the hours during which this period will be used. This period counts as part of the daily working hours. The employee cannot request to use the breastfeeding leave collectively by accumulating it. The penalty for the employer’s failure to grant breastfeeding leave is also stipulated in Article 104 of the Law as an administrative fine. It should be noted that a behavior subject to a penalty must also have a legal sanction.
Breastfeeding leave is a leave of absence based on a legal excuse and is a legal right. As a rule, it is subject to remuneration. However, it cannot be postponed and cannot be used later. For this reason, it must be requested by the employee to be used as soon as it arises. Although no remuneration is provided for breastfeeding leave, if it is not granted to the employee, a legal sanction, such as a penalty, should be imposed.
If the employee worked during the 1.5 hours of daily breastfeeding leave, this should be considered overtime work and the corresponding overtime pay should be calculated and awarded.
In the specific dispute, the plaintiff claimed that she was not granted breastfeeding leave after giving birth, while the defendant argued that she had used five days of breastfeeding leave in total. First, the total breastfeeding leave that should have been granted to the plaintiff, excluding the days she used for maternity and other leave, should be determined based on the daily 1.5 hours she was entitled to from the date of her delivery until the date the child reached one year of age. The leave granted should be deducted, and the remaining portion should be calculated as overtime pay based on the wage applicable on the date it should have been used and ruled as compensation for breastfeeding leave. Therefore, the rejection of this claim with a written justification is erroneous.
3. It has been accepted that the plaintiff’s remaining 15 days of leave pay, amounting to TL 1,830.66, was accrued and paid with the payroll dated 30.04.2013. However, the payroll is unsigned. Bank records have been provided up to 15.04.2013. It is inappropriate to decide to reject this claim without determining whether the leave pay was paid via bank transfer.
CONCLUSION: The appealed decision is REVERSED for the reasons stated above, and it was unanimously decided on 04/27/2017 that the advance appeal fee shall be refunded to the relevant party upon request.
T.C.
COURT OF CASSATION
22nd CIVIL CHAMBER
CASE NO: 2015/12878
DECISION NO: 2016/17527
DATE OF DECISION: 13.06.2016
COURT: Labor Court
CASE: The plaintiff requested a decision ordering the payment of overtime wages and maternity and breastfeeding leave entitlements.
The court partially granted the request.
Although the parties’ attorneys appealed within the ruling period and the plaintiff’s attorney requested a hearing, pursuant to the transitional Article 3 of the Civil Procedure Code No. 6100, which continues to be applied, and Article 438 of the repealed Code of Civil Procedure No. 1086, After the request for a hearing was rejected on the grounds of amount and it was decided that the examination would be conducted based on the documents, the report prepared by the Investigating Judge … was submitted, the file was examined, and the necessary discussions and deliberations were made:
DECISION
The plaintiff’s representative stated that the client worked at the defendant’s workplace between September 1, 1991, and March 8, 2013, that she could not benefit from the provisions of the collective labor agreement in force at the workplace, that she took pre-natal leave on January 4, 2010, that she gave birth on January 24, 2010, only one week of the unused pre-birth leave was added to the post-birth leave, the remaining period was not added to the leave, she was often unable to use the two hours of breastfeeding leave she was entitled to, no payment was made, and overtime pay was not paid. The plaintiff’s attorney requested that the defendant pay the plaintiff’s overtime, maternity leave, and breastfeeding leave wages.
The defendant’s representative argued that the case should be dismissed on the grounds of the statute of limitations.
At the end of the trial, the court ruled to accept the claim for overtime pay but to reject the other claims.
The decision was appealed by the parties’ representatives within the statutory period.
Reason:
1-Based on the documents in the file, the evidence gathered, and the legal grounds on which the decision is based, all of the defendant’s appeals and the plaintiff’s appeals outside the scope of the following paragraphs are unfounded.
Article 69/3 of Labor Law No. 4857 states, “Workers’ night work cannot exceed seven and a half hours. However, in tourism, private security, and healthcare services, night work exceeding seven and a half hours may be performed with the written consent of the employee.” Although there is no legal regulation stipulating that night work must be paid at an increased rate, our Chamber’s established case law clarifies this situation.
2-The parties also disagree on whether the plaintiff employee is entitled to maternity leave pay.
Article 69/3 of Labor Law No. 4857 states that “Workers’ night shifts may not exceed seven and a half hours. However, in tourism, private security, and healthcare services, night work exceeding seven and a half hours may be performed with the written consent of the employee.” Although there is no legal regulation stipulating that night work must be paid at an overtime rate, our Chamber’s established case law has clarified this issue and accepted that overtime worked at night must be paid at an overtime rate.
Regarding breastfeeding leave, Article 74/7 of Law No. 4857 stipulates that “Female workers are granted a total of one and a half hours of breastfeeding leave per day to breastfeed their children under one year of age. The worker herself determines the hours during which this period is used and how it is divided. This period counts as part of the daily working hours.”
Therefore, in accordance with the law, granting female employees one and a half hours of breastfeeding leave per day (although the duration may be adjusted between the parties in favor of the employee) is not at the discretion of the employer. Therefore, the hours during which this period is to be used and how it is to be divided are determined by the employee, If the employee is required to use breastfeeding leave but is not granted it, the determination of the unused period and the calculation based on 50% overtime pay should be accepted. This is more in line with the spirit of Law No. 4857, adopting a purposive interpretation, and therefore the ruling must be overturned.
CONCLUSION: The appealed decision was REVERSED for the reasons stated above, and it was unanimously decided on June 13, 2016, that the appeal fee paid in advance shall be refunded to the relevant party upon request.