Supreme Court of the Republic of Turkey
9. Law Office
Basis: 2015/ 34918 Decision: 2019 / 19490
Decision Date: 11.11.2019
JUDICIARY DECISION
COURT: LABOR COURT
The decision made as a result of the lawsuit between the parties was requested by the parties’ attorneys to be examined on appeal, and it was understood that the appeal requests were in time. After listening to the report prepared by the Investigation Judge for the case file, the file was examined, the need was discussed and considered:
JUDICIARY DECISION
A) Summary of Plaintiff’s Request:
The plaintiff stated that his client worked from 18/04/2009 to 31/01/2012, he was an international truck driver, his last wage was the minimum wage plus the trip premium, he made 2-3 trips per month, 550 Euros for European countries, for England. He received 650 Euro per diem, his employment contract was terminated unjustly, he received a salary of 2000 TL, that he was a translator, 1300 TL of difference, including severance and notice indemnity, overtime, weekly vacation, general vacation, difference leave fee, and underpaid salary and subsistence receivables. He demanded and sued that , be taken from the defendant and given to his client.
B) Summary of Respondent’s Reply:
The defendant requested the dismissal of the case.
C) Summary of the Trial Process and the Local Court Decision:
By the court; As a result of the examination made according to the evidence gathered, the expert report and the scope of the file, it was seen that the plaintiff was entitled to notice compensation, as it was seen that he was unfairly dismissed. Also, although it was proven with the witness statements that the plaintiff worked during the public holidays and did not use his annual leave, the defendant’s case was partially accepted because the contrary could not be sufficiently proved by the defendant. decided.
D) Appeal:
During the decision period, the parties’ attorneys appealed.
E) Reason:
1-According to the evidence gathered from the articles in the file and the legally compelling reasons on which the decision is based, the appeal objections of the parties that fall outside the scope of the following paragraphs are not appropriate.
2- There is a dispute between the parties as to whether the plaintiff is entitled to the travel premium.
The plaintiff worker claimed that his allowances were paid 100 € less each time he left since 2009, and demanded the collection of the underpaid allowances due to the deduction from the travel premium, the plaintiff’s witnesses confirmed the claim, and the defendant admitted this claim.
It is seen that this request was rejected by the court without giving any justification.
From the examination of the expert report based on the provision; The burden of proof that the fee was paid lies with the defendant, and when the transportation cost reports, payment receipts, and petitions for deduction from the advance showing that the requested fee has been paid, it has been understood that it has not been reported that a definite determination could not be made regarding the incomplete payment of the voyage premiums of the plaintiff.
The file of the decision of the 9th Civil Chamber of the Supreme Court of Appeals, dated 14.12.2015 and numbered 2015/21937, Article 2015/35379, which has been reviewed by our department, and other similar files; The decision of the Bakırköy 12th Labor Court, dated 12.11.2012 and based on 2011/356, 2012/587, was decided to reject the request for a travel bonus on the grounds that the said deduction has been implemented since 2009 and the plaintiff continues to work in this way and that the practice has become a workplace condition. It has been understood that it has been reported that no calculation will be made regarding the request, as it is a precedent for this case file.
The aforementioned local court decision has been reviewed by our Department and, in summary, with the decision of the 9th Civil Chamber of the Supreme Court of Appeals, dated 27.11.2014 and numbered 2013/1940 Main 2014/35874, “Every major change made against the worker during the period of law no 4857 is written in accordance with Article 22. It has been overturned on the grounds that it is necessary to make a written consent of the worker and to have the written consent of the worker, it cannot be accepted that the change made against the worker has become a workplace condition because it is made outside the procedure in Article 22, therefore, the information and documents in the file should be evaluated and the claim of the plaintiff, if any, should be taken into custody.
In the face of these explanations, the claimant’s request for difference allowance should be taken into consideration by considering the information, documents and statements in the file, but its rejection with a written justification is wrong.
3- While calculating from the account root and additional reports in the file, the stamp tax rate should be taken into account as 7.59%, but it is incorrectly taken into account as 0.66%.
F) Result:
It was unanimously decided on 11.11.2019 that the appealed decision be OVERFINED for the reasons written above, and that the appeal fee paid in advance would be returned to the relevant person upon request.
