The Worker Is Responsible For His Signature Even If He Is Illiterate
22nd Civil Chamber of the Court of Cassation
Principal Number: 2012/3328
Decision Number: 2012/8399
“Case Law Text”
COURT : Izmir 9th Labor Court
DATED : 13/02/2012
NUMBER : 2011/556-2012/76
The plaintiff claimed that he worked at the defendant’s workplace between 06.05.2005 and 13.05.2011, that his employment contract was terminated unfairly by the employer on the grounds of absenteeism, and requested the collection of severance and notice indemnities and some labor receivables.
Defendant argued that the plaintiff left the workplace on 08.06.2011 by arguing with other workers at the workplace, that he did not continue to work on the following days without a valid excuse, that his employment contract was terminated based on the just cause of absenteeism, and requested the dismissal of the lawsuit.
The court, based on the evidence collected and the expert report, decided to partially accept the lawsuit on the grounds that the defendant was unfair in terminating the employment contract.
The defendant appealed the decision.
1- According to the writings in the file, the collected evidence and the legal reasons for the decision, the defendant’s objections to the appeal other than the scope of the following paragraph are not relevant.
2- There is a dispute between the parties as to whether the plaintiff employee worked overtime or not.
The employee who claims overtime work is obliged to prove this claim. The rules regarding payrolls are also valid here. Payroll, which bears the signature of the employee, is conclusive evidence until its forgery is proven. In other words, unless the forgery of the payroll is claimed and proved, it is assumed that the overtime work receivable appearing on the signed payroll has been paid.
Workplace records, especially documents showing entry and exit to and from the workplace, and internal correspondence of the workplace are evidentiary evidence for the proof of overtime work. However, in the event that overtime work cannot be proved by written documents, the parties must come to a conclusion with witness statements. Apart from this, some general facts known by everyone can also be taken into consideration at this point. It should also be investigated whether there is overtime work according to the nature and intensity of the work actually performed by the worker.
If it is understood that overtime wages are paid in the signed wage slips, it is not possible for the employee to claim that he actually worked more. However, if the employee has a reservation that the overtime work receivable is more, it can be proved by all kinds of evidence that the employee has worked more than the payroll. In the event that the payrolls are signed and without reservation, the employee must prove by written document that he/she has worked more than the amount stated in the payroll.
In the event that the employee does not sign the payroll, but different amounts of wage payments are made through the bank channel every month, including overtime wage accruals, the fact that no reservation record has been put forward leads to the conclusion that it is necessary to prove by written evidence that more overtime work has been done than the amount paid.
In the concrete case, it is seen that overtime wages were accrued in the signed payrolls submitted by the defendant for the 11-12 months of 2010 and 1-2-4 and 5 months of 2011, and the amounts accrued in the payrolls were paid to the plaintiff’s bank account and paid without reservation. Although it is stated in the explanation section of the expert report taken as the basis of the judgment that these months with accruals should be excluded from the calculation, it is seen that the said period was not excluded when making the calculation. Establishing a judgment based on an erroneous expert report required a reversal.
3- The other dispute between the parties is whether the employee is entitled to wages for unused vacation periods.
Article 59 of the Law No. 4857 stipulates that in the event of termination of the employment contract for any reason, the wages of the unused annual leave periods shall be paid to the employee at the last wage. The termination of the employment contract is a condition for the annual leave right to be converted into wages. At this point, the manner of termination of the contract and whether it is based on just cause or not is not important.
The burden of proof for the use of annual leave belongs to the employer. The employer must prove the use of annual leave with a signed leave book or an equivalent document. Employer, who has the burden of proof on this issue, may offer an oath to the employee.
In the concrete case, in the annual leave book submitted by the defendant, there are signatures of the plaintiff stating that he used forty-two days of annual leave that he was entitled to according to his working period. It is also evident from the content of the minutes of the warning penalties given to the plaintiff by the employer before the termination that the plaintiff was illiterate. Since the conditions stipulated in Article 206 of the Code of Civil Procedure No. 6100 were not met, the court accepted that the plaintiff’s signatures in the annual leave book could not be accepted as valid and awarded annual leave pay over the forty-two-day period.
Witness Oruç Budanır, the plaintiff’s spouse, stated that the plaintiff used fifteen days of annual leave during the working period. Although the plaintiff stated in his petition for declaration regarding the evidence submitted by the defendant employer that the signatures on the payrolls did not belong to him, he did not claim that the signatures in the annual leave book did not belong to him and did not bring a defense that they were fraudulently taken from him
The rule stipulated by Article 206 of the Law No. 6100 on the form and conditions of issuance of sealed, fingerprinted and marked documents is not a form of validity, but a form of proof. In this respect, this form of issuance stipulated in the aforementioned article is only and only in the event that the fingerprint or special mark of the seal is denied; in this respect, in the event that the fingerprint is denied, the fingerprinted document is deemed valid even if it has not been approved in accordance with Article 206 of the Procedure.
Signing or marking a document without reading it should be accepted as a valid document in terms of the principle of trust. This is because the person who signs or fingerprints a document, even if he has no knowledge of its content, cannot later claim that the document is invalid. In the face of this situation and considering the material and legal facts explained above, it is inappropriate to decide to accept the lawsuit for the annual leave wage receivable while the lawsuit should be rejected.
CONCLUSION: It was unanimously decided on 02.05.2012 that the appealed decision shall be DISMISSED for the reasons written above and the prepaid appeal fee shall be refunded to the related party upon request.
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