Supreme Court
9. Legal Department
Basis 2015/711b 2016/9142 Decision
In its decision dated 12.04.2016;
CASE: Plaintiff-counterdefendant, wage claim, overtime pay, public holiday, weekend pay, annual leave
the defendant-counter-plaintiff demanded the payment of the notice indemnity.
The local court decided to partially accept the original case and to accept the counterclaim.
Having appealed by the plaintiff-counter-defendant lawyer during the sentence, the case file
After listening to the report prepared by the Investigation Judge, the file was examined, the need was discussed.
it was considered:
A) Summary of Claimant-Against Defendant’s Claim:
Plaintiff-counter-defendant started working as mixer operator and dispatcher on 10/04/2011.
He started working until 10/04/2013, his last net wage was 2,300,00 Turkish Liras, the plaintiff’s
working more than 45 hours per week but overtime wages are not paid, on public holidays
He claims that he has not been paid for his work, that his annual leaves have not been used, that his wages have not been paid.
claiming that he will receive overtime wages, weekly holiday wages, annual leave wages and public holiday wages.
has done.
B) Summary of Respondent vs. Defendant:
Defendant-counter-plaintiff states that the plaintiff worked between 10/04/2011-27/03/2013 by resigning.
that he was working as a concrete batching plant dispatcher until the date he left, and that the plaintiff was paid minimum wage
that the plaintiff is working, that all wages of the plaintiff are paid, that overtime is required at the defendant’s workplace
was done and paid for, the plaintiff used his annual leave during his working period,
that the defendant worked 6 days a week at his workplace, that the plaintiff did not have a weekly holiday wage, national holiday
that their claims regarding their work have no basis, that they have made a clearing deduction
the claimant’s notice indemnity payment because the plaintiff terminated the employment contract without complying with the notice preliminaries
arguing that it is necessary to reject the case and to accept the notice indemnity.
C) Summary of Local Court Decision and Trial Process: Based on the evidence gathered and the expert report, the court fulfills this obligation of the plaintiff worker, who bears the burden of proving that overtime and weekend work are performed, in terms of the main case.
that the plaintiff witnesses who could not bring the case against the defendant, who were heard,
the fact of overwork and weekend work, in which it is not possible to respect the statements of
As it is understood that the plaintiff party could not present any other evidence that would serve as proof, this item will
to the refusal, that the plaintiff works on public holidays, as understood by the statements of the defendant’s witnesses,
Since it could not be proven that the wage corresponding to his work was paid by the defendant employer, the official holiday wage
It has been decided that the receivable will be accepted.
In terms of counterclaim: The plaintiff claimed that the employment contract was terminated by the defendant employer.
although there is no evidence to the contrary of the plaintiff’s handwritten resignation statement, and
it was seen that no reason was given in the resignation statement, the plaintiff’s
In accordance with the article, the defendant employer must notify the termination beforehand, the defendant employer
It has been decided to accept that he will receive notice indemnity on the grounds that he has the right to demand compensation.
D) Appeal: The plaintiff-counter-defendant’s attorney appealed against the decision.
E) Reason:
1-According to the articles in the file, the collected evidence and the legally compelling reasons on which the decision is based, the plaintiff’s wife
The objections of the defendant’s attorney, which are outside the scope of the paragraph below, are not valid.
2- Non-payment of the wages of the worker or … of the earnings based on the premiums over the real wage.
Failure to do so gives the worker the right to terminate in accordance with Article 24/II-e of the Law No. 4857. Other
On the other hand, in accordance with Article 435/2 of the TCO in force on the date of termination, although the reason for termination
Even if it is required to be notified by the party, the service from the party that terminates the contract according to the rules of honesty.
If the employee is not expected to continue his relationship, all conditions will be considered justifiable.
Failure to clearly state the reason for termination does not affect the outcome. Plaintiff’s general holiday wages not paid
and … that their premiums were not reported on the actual wage, and in fact, this Court also
is accepted. It is clear that the business relationship became unbearable for this reason, and the plaintiff shortly after the termination.
did not sue. In this case, due to the plaintiff’s termination of the employment contract with just cause, the defendant-against
While the plaintiff’s claim for notice indemnity should be rejected, its acceptance is erroneous.
3- The court will not respect the statements of the plaintiff’s witnesses on the grounds that they have filed a lawsuit against the employer.
It is assumed that this fee will not be paid on the grounds that the claimant has not been paid for overtime, and therefore the claimant cannot prove the overtime wage.
has been rejected. However, if there is evidence other than the statements of witnesses and in the case brought by these witnesses,
If it is accepted that overtime is worked in the workplace, these evidences should be evaluated together. Thus
According to the content of the file, there is overtime payment in some payrolls as well as shift work.
Defendant witness statements are contradictory, and the defendant’s witness declares that the plaintiff also worked out of shift.
has done. On the other hand, it was stated that …, who was heard as the plaintiff’s witness, worked 18 hours a week overtime at his workplace.
With the decision of Istanbul Anatolian 9th Business Court dated 17/07/2014 and numbered E.2013/443, K.2014/375
was accepted and this decision was approved and finalized. If you finalize this decision, the defendant witness statements, the plaintiff
witness statements; When evaluated together with, it is fixed that overtime is worked in the workplace. by the court
This report of the expert should be evaluated and it should be decided that he will get overtime. Written
The decision to reject the demand for overtime wages with justification was erroneous and required annulment.
F) Result:
If the appealed decision is reversed due to the reasons stated above,
It was unanimously decided on 12/04/2016 that the fee be returned to the relevant person upon request.
