The employer who employs the employee during the week break must give the employee a 1.5-day bonus for the week break. You can review the sample Supreme Court Decision.
Civil Department
Part Number: 2016/7708
Decision Number: 2019/18054
“text of jurisprudence”
COURT :LABOUR COURT
It became clear that the decision made as a result of the case between the parties was requested by the defendant’s deputy to examine the appeal and that the appeals were in the deceleration period. After hearing the report organized by the Audit Judge for the case file, the file was examined, discussed and considered as necessary:
THE DECISION OF THE SUPREME COURT
A) Summary of the Plaintiff’s Claim:
The acting plaintiff claimed that his client worked as a transport driver and purchasing staff at the defendant’s workplace from 17/10/2007 to 14/03/2014, that the employment contract was terminated unfairly and without notice and malicious by the defendant, and that seniority, notice compensation and wages, overtime pay, national holiday general holiday fee, week break fee and annual leave fee would be collected from the defendant.
B) Summary of the Respondent’s Response:
The defendant’s counsel, plaintiff’s started on 21/11/2007, in the history of 21/001/2008 quit of his own accord, and again a second time in the history of 16/04/2009 left of his own accord into that absence will receive a fee as claimed in the petition, it uses the permissions of annual leave, the payment of the fees of his work for the holidays, weeks of use, the study of religious holidays, arguing that a dismissal has asked for.
C) Summary of the Decision of the Local Court:
Based on the expert report and the evidence collected by the court, the plaintiff of the defendant in the workplace two semesters, a total of 5 years, and 28 working days in the workplace, up to and witnessed a contraction of employment by the employer terminated without notice, and severance pay defendant the right to demand unfair on the grounds of the birthplace of the plaintiff’s understood, it was decided to partial acceptance of the case.
D) Appeal:
The decision was appealed by the defendant’s deputy.
E) The reason:
1-According to the articles in the file, the collected evidence and the legal reasons on which the decision is based, the defendant’s appeals, which are outside the scope of the following paragraphs, are not in place.
There is a dispute between the parties regarding the decalculation of the 2-week vacation pay.
46 of the Labor Code No. 4857. in accordance with the second paragraph of the article, the wage of the worker is paid in full without a job allowance for the day of the week break that is not worked. Although the law does not regulate how to calculate the salary of a worker working during a week break, the opinion has been adopted by our department that the work done during a week break will be considered overwork, accordingly, the wage should be paid with a fifty percent increase (Supreme Court 9.H.D. 23.5.1996 day 1995/37960 E, 1996/11745 K.). Accordingly, if it was worked during the week break, in addition to a contribution that must be paid without a working allowance, the equivalent of the work must also be paid in one and a half contributions.
Week break fees are calculated on the basis of the worked period fee. It would not be correct to make a calculation based on the final fee. In this case, it is not enough to know the final wage of the worker for the calculation of week holiday wages. The amount of workers ‘ wages should also be determined during the period subject to the request. In case the wage of a worker belonging to past periods cannot be determined, the ratio of the known wage to the minimum wage is made and the determination of the unknown wage accordingly is accepted by our Department. However, in cases where a worker receives various titles by being promoted during his / her working time at the workplace or has recently benefited from a collective bargaining agreement, it would not be correct to take into account the ratio of the last known wage to the minimum wage in terms of past periods. In such cases, a fee survey should be conducted for unknown periods from the relevant professional organizations and the other evidence in the file should be evaluated together and the result should be reached.
In jobs where wages are paid per part or according to the amount of work performed, the calculation should be made by dividing the total of wages earned during the payment period by the number of days worked. In terms of workplaces where the percentage procedure is applied, the total amount of wages that the employee receives that week is divided by six to obtain a vacation pay. In the form of work in which a percentage procedure or payment of a per-piece fee is provided, the week holiday fee should be calculated in accordance with the increased part of the determined daily wage.
In a concrete dispute, since the Court paid 1 month’s salary, which should be paid without working in terms of working days of week holidays, it is impossible to make a decision on the erroneous expert report calculating over 2.5 days, while it is necessary to make an account over 1.5 days ‘ salary for a week’s vacation that is not paid, and to determine the amount that will be received.
3-In the expert report based on the decision of the court, the total national holiday holiday fee that the plaintiff deserves was calculated as a net amount of TL 855.15. The Court explained that a reasonable discount based on a presumption of 1/3 of this receivable was made on the basis of the decision, and accordingly, it is incorrect to rule on TL 683.47 when a net TL 570.10 should be determined.
4-HMK does not specify in the provision whether the amounts determined are net or gross.of 297/2. it was also necessary to violate the article and not to think that it would lead to hesitation in the execution.
F) The result:
It was unanimously decided on 14.10.2019 that the appealed decision would be OVERTURNED for the reasons written above, and the appeal fee received in advance would be refunded to the interested party upon request.