The Employer Of A Worker Employed In Premises Subject To Condominium Ownership Is The Condominium Owners.
Republic of Turkey
COURT OF CASSATION
9th CIVIL CHAMBER
CASE NO: 2017/5716
DECISION NO: 2017/14596
DATE OF DECISION: 2.10.2017
SUMMARY: The employer of a worker employed in a condominium is the condominium owners, and the condominium owners are equally liable for the worker’s wages. The management acts as the employer’s representative. Although the lawsuit was rightly filed against the management, the judgment should be rendered against the condominium owners in accordance with Article 20/a of the Condominium Law.
The plaintiff requested a decision ordering the payment of severance pay, notice pay, national holiday and general holiday pay, annual leave pay, weekly holiday pay, overtime pay, and wage claims.
The local court decided to partially accept the case.
The case was appealed by the defendant’s lawyer within the judgment period. After hearing the report prepared by the Review 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 continuously as a security guard, gardener, and cleaner at the defendant’s workplace between May 1, 2009, and August 30, 2013, that the site is a complex with 81 apartments and is a crowded site with over 300 residents, that he performed the site’s garden cleaning, watering, fertilizing, and all maintenance, that he also began performing internal and external maintenance cleaning work starting in November 2012, that his client worked from 6:00 AM to 9:00 PM, that his client did not take weekends off, including Saturdays and Sundays, and did not receive pay for them, in the last year, he was given one day off per week on Tuesdays, but even on this day off, he returned to the site at 4:00 PM to continue his services, he is owed 250.00 TL for the last 10 days’ wages, He did not take annual leave in 2009-2010, did not take any leave during religious holidays in 2009-2010, took leave for the first three days in subsequent years, and did not take any leave during public holidays. Despite being granted a short leave, he was told that he had to continue working under the same conditions before the leave ended. He claims that he was dismissed when he stated that he was on leave. He requests that the defendant be ordered to pay his seniority and notice compensation, annual leave pay, national holiday pay, general holiday pay, weekend pay, overtime pay, and wages owed.
The defendant’s representative submitted a petition stating that the plaintiff worked as a building attendant, did not start work on 07/16/2012, the end of his annual leave, that the defendant was able to contact the plaintiff on 07/18/2012, and that the plaintiff left the job on the same date at his own request, arguing that he had no outstanding claims against the site.
The court partially accepted the case and ruled that the defendant should pay severance pay, notice pay, annual leave pay, national holiday pay, general holiday pay, weekend pay, and overtime pay.
The defendant appealed the decision.
1-) Based on the documents in the file, the evidence gathered, and the legal grounds on which the decision is based, the defendant’s appeals outside the scope of the following clause are unfounded.
2-) Whether the plaintiff worked on weekdays is a matter of dispute between the parties.
Although the court ruled on the claim calculated based on the plaintiff’s witness statements, both the defendant’s witness and the plaintiff’s witness stated that the plaintiff was off on Sundays. In this case, considering the contradictory and abstract statements of the defendant’s witnesses and the plaintiff’s witnesses, it is understood that the plaintiff failed to prove the claim that he worked on weekly holidays. The acceptance of the claim instead of its rejection is erroneous.
3-) The employer of a worker employed in a condominium is the condominium owners, and the condominium owners are equally liable for the wages owed to the worker. The management is in the position of the employer’s representative. Although the lawsuit was rightly filed against the management, the judgment should be rendered against the condominium owners in accordance with Article 20/a of the Condominium Law.
CONCLUSION: The appealed decision is REVERSED for the reasons stated above, and the advance appeal fee shall be refunded to the relevant party upon request. This decision was made unanimously on October 2, 2017.