It Is Erroneous For The Court Not To Take Into Account The Food And Accommodation Assistance In The Calculation Of The Wage In The Expert Report – The Wage Should Be Determined According To The Precedent Wages
T.C. JUDICIARY
22nd Civil Chamber
Main: 2016/15857
Decision: 2016/18919
Date of Decision: 23.06.2016
WORKER’S RECEIVABLES CASE – THE COURT ERRED IN NOT TAKING INTO ACCOUNT THE FOOD AND ACCOMMODATION ALLOWANCE IN THE CALCULATION OF THE DRESSED WAGE IN THE EXPERT REPORT FORMING THE BASIS OF THE DECISION – THE DRESSED WAGE SHOULD BE DETERMINED ACCORDING TO THE PRECEDENT WAGES
SUMMARY: In the concrete case, it is erroneous not to take into account the food and accommodation allowance in the calculation of the dressed wage in the expert report that constitutes the basis of the decision of the court, and in the files on precedent workers examined by our Chamber (…../….. main series of our Chamber), the workers working at the defendant’s construction sites abroad …….. TL food and accommodation assistance is provided to the workers working at the defendant’s construction sites abroad. Making a decision with a misleading evaluation is not correct and required to be reversed.
(4857 S. K. art. 17, 41)
Case: The plaintiff requested a decision for the payment of severance pay, notice pay and annual leave pay receivables.
The court partially ruled the request.
Although the judgment was appealed by the lawyers of the parties within the time limit and a hearing was requested by the defendant’s lawyer, the request for a hearing was rejected since there was no postage stamp to be affixed to the invitation for the notification of the hearing date to the parties, and after it was decided to conduct the examination on the documents, the report prepared by the Examining Judge … was presented, the file was examined, the requirements were discussed and considered:
The plaintiff’s attorney stated that his client worked at the defendant’s construction sites abroad between 2005 and 2008, that his employment contract was terminated unfairly by the employer, that his net wage was 9.00 Saudi Rials, and that social benefits such as three meals, accommodation and heating were provided, and demanded the collection of severance and notice pay from the defendant.
The defendant’s attorney stated that the plaintiff’s claims were time-barred, that his client was not the plaintiff’s real employer, that the plaintiff was paid or his employment was terminated due to liquidation, and that the allegations were unfair and groundless, and requested the dismissal of the lawsuit.
As a result of the trial, the court, based on the evidence collected and the expert report, decided to partially accept the lawsuit with the written justification.
The decision was appealed by the parties.
1- According to the writings in the file, the evidence collected and the legal grounds on which the decision is based, the defendant’s unspecified appellate objections and the plaintiff’s appellate objections other than the scope of the following paragraph are not relevant.
2- In the determination of the dressed wage to be taken as the basis for severance and notice pay, the benefits that can be measured in money or money provided to the employee in addition to the actual wage mentioned in Article 32 of the Labor Law No. 4857 are taken into consideration. Accordingly, bonuses, continuous premiums, fuel allowance, clothing allowance, rent, lighting, service allowance, meal allowance and similar payments are taken into consideration in the calculation of severance pay.
In the concrete case, it is erroneous not to take into account the meal and accommodation allowance in the calculation of the dressed wage in the expert report that constitutes the basis of the decision of the court, and the dressed wage should be determined by evaluating the acceptance that the workers working at the defendant’s construction sites abroad are provided with a monthly meal and accommodation allowance of 150.00 TL in the files on precedent workers examined by our Chamber (…../….. main series of our Chamber). Making a decision in the written manner with a misleading evaluation is not correct and required to be reversed.
Conclusion It was unanimously decided on 23.06.2016 to overturn the appealed decision for the reasons shown above and to refund the prepaid appeal fee to the relevant party upon request.
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