T.C SUPREME COURT 9.Legal Department Base: 2015/ 34061 Decision: 2019 / 19788 Decision Date: 13.11.2019

THE DECISION OF THE SUPREME COURT

TRIBUNAL : EMPLOYMENT TRIBUNAL

It became clear that the decision made as a result of the lawsuit between the parties was requested by the defendant’s deputy to examine the appeal, and the appeals were within the deci-sion of the appeal requests. After hearing the report prepared by the Examining 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 Request:

As a driver of the defendant the plaintiff’s attorney of the plaintiff in the workplace, working time abroad, that is, labor work due to non-payment of receivables has rightly scrapped, citing actin, severance pay, overtime, unpaid wages, annual leave and public holidays they wanted to take.

B) Summary of Respondent’s Response:

The defendant’s deputy asked for the dismissal of the case, arguing that the employment contract was terminated by the defendant employer because the plaintiff did not come to work without an excuse and permission, therefore he was not entitled to severance and notice compensation, and there were no other labor receivables that he could claim.

C) Summary of the Decision of the Local Court:

On the basis of the collected evidence and the expert report, the court decided to partially accept the case on the grounds that the plaintiff’s employment contract was justified in termination, that he worked overtime and during general holidays, that he would receive unpaid wages and annual leave wages.

D) Appeal:

The decision was appealed by the defendant’s deputy.

E) Justification:

1- According to the articles in the file, the evidence collected and the legal reasons on which the decision is based, the defendant’s appeals that fall outside the scope of the following paragraphs are not in place.

2- The plaintiff is a working truck driver, and there is a dispute on the point of whether he is entitled to overtime pay.

Truck drivers can work in two ways, making trips at home or abroad. The wages of truck drivers working in the transport business in the country can be agreed as the basic wage between the parties, as well as in the form of a premium paid for the number of flights or per decimeter traveled in addition to a fixed fee.

The wages of truck drivers working in the international arena are usually determined on the basis of the minimum wage and the premium depending on the expedition. In some employer applications, the minimum wage, called the guaranteed wage, is not paid, and only the premium payment is made depending on the time. In this case, the fee of the truck driver consists of only travel premiums (Supreme Court 9.H.D. 21.05.2013 day, 2011/ 10769 E, 2013/ 15255 K.)

The travel premium is called the travel premium in practice and may vary depending on the country of departure. The mentioned travel premium is different from the advance payment given for road tolls and other expenses, which is closed for the document upon return to Turkey, and is completely in the nature of the wage paid to the worker. In the decisions of the established Supreme Court, it is also accepted that truck drivers operating internationally will not work at the legal minimum wage (Supreme Court 9.H.D. 02.05.2013 day, 2011/ 10981 E, 2013/ 13086 K. ; Supreme Court 9.H.D. 06.06.2013 day, 2011/ 17648 E, 2013/ 17351 K. ; Supreme Court 22. H.D. 17.04.2013 day, 2012/ 22153 E, 2013/8106 K.)

If the monthly wage of a truck driver working in the international transport business is controversial, if a final conclusion cannot be reached with the evidence provided by the parties, a wage survey should be conducted from the relevant professional organizations of employees and employers, as well as, if necessary, from trade unions. It should be determined how much the employee can receive per trip by specifying the countries in which he performs the transportation work during his working time, and the conclusion should be reached by evaluating it together with other evidence covered by the file (Supreme Court 9.H.D. 02.05.2013 day, 2011/10981 E, 2013/ 13086 K.).

If the number of monthly or annual trips of the employee in terms of the travel premium account is controversial and this issue cannot be proven conclusively with other evidence, the entry and exit records of the employee should be brought from the security departments and evaluated accordingly (Supreme Court 9.H.D. 20.05.2013 day, 2011/ 14649 E, 2013/ 15167 K.).

In case of an abstract claim that the travel premiums are underpaid or that the employer has made a deduction, the employee should be asked to explain the periods in which the missing payment was made and the dates in which the deduction was made, and the request should be embodied (Supreme Court 7.H.D. 11.04.2013 day, 2013/ 2500 E, 2013/ 6317 K.). Then, the payment documents of the employer should be evaluated and it should be determined whether there is a missing payment or a deduction.

The overseas travel premium is not an october to the fare but is a fee and is taken into account directly in the compensation based fee. If the wage consists of the minimum (guaranteed) wage and the sum of the travel premium, the basic wage for compensation is determined based on the monthly travel premium and the sum of the minimum wage by determining how many times the employee makes per month. If the period of departure abroad varies and the travel premium varies depending on the country of departure, the basic wage for daily compensation is determined by dividing the sum of the premium amounts received by the employee according to the trips he has made in a year by one day (Supreme Court 9.H.D. 03.05.2013 day, 2011/ 8904 E, 2013/ 13358 K.).

The wage that must be paid to the truck driver who works abroad and receives a travel premium according to the country where he goes with the minimum wage during the period when the employee uses his right to annual leave is not limited to the minimum wage. The right to annual leave is the right to rest, which has a constitutional basis, and the employee must receive his wages in full during the period when he is not working. In this sense, it cannot be mentioned that the employee can exercise his right to rest if the absolute minimum wage is paid to the employee during the period of annual leave. According to the travel premium averages, the employee’s wage rights for the period of leave must be provided. At the termination of the employment contract, the employee’s wages for annual leave periods that he does not use should also be paid by calculating the time premium based on the added wage (Supreme Court 7.H.D. 28.03.2013 day, 2013/ 1623 E, 2013/ 4798 K.).

Although overwork from the point of view of domestic truck drivers can be proven by all kinds of evidence, if there are tachometer records, the examination should be carried out on these records (Supreme Court 9.H.D. 30.01.2013 day, 2010/ 39450 E, 2013/ 3675 K.). It is possible for a truck driver working at home to prove with all kinds of written evidence or witnesses that he works during the week holidays, holidays and general holidays. However, according to the national traffic rules, it is necessary to prove with convincing evidence that overwork has been done due to the obligation to drive for a certain hour a day (Supreme Court 22.H.D. 24.06.2013 day, 2012/ 25400 E, 2013/ 15235 K.). If tachometer records are submitted, the records should be given the upper hand by conducting an examination with the help of an expert expert on the subject (Supreme Court 9.H.D. 13.06.2013 day, 2011/ 17536 E, 2013/ 18349 K. ; Supreme Court 22. H.D. 21.05.2013 day, 2013/ 10623 E, 2013/ 11943 K.).

According to the Court of Cassation’s practice, which has gained determination, it is not possible for truck drivers traveling abroad to charge extra work fees based on pure witness evidence. The statements of the witnesses are related to their working hours and it is impossible for them to know the exact working hours of the day due to the fact that they do not work at the same time as the truck driver who filed the lawsuit (Supreme Court 22. H.D. 02.05.2013 day, 2012/ 20294 E, 2013/ 9333 K.). On the other hand, international truck drivers are obliged to comply with strict traffic legislation related to daily truck use as they determine their work hours (Supreme Court 9.H.D. 25.03.2013 day, 2013/ 1808 E, 2013/ 9914 K. ; Supreme Court 9.H.D. 23.01.2013 day, 2010/ 39429 E, 2013/ 2594 K.).

As truck traffic is prohibited on week break days in European countries, it is not possible to prove the work of week break with only witness statements for truck drivers traveling to European countries (Supreme Court 9.H.D. 2011/ 16868 E, 2013/ 17242 K.; Supreme Court 9.H.D. 03.05.2013 day, 2011/ 7424 E, 2013/ 13347 K.).

Concrete in the file, the court, if it is decided to the acceptance of the plaintiff’s request for overtime, the provision on the basis of the surveyor’s report which are calculated according to the witness statement of the plaintiff’s work more time, but as stated in the above policy, International truck driver can not prove with concrete evidence that the plaintiff’s doing overtime because it is understood that further work should be made when the plaintiff’s decision to refuse the request for the abstract, according to witness statements calculated to be taken under the provision is mistaken.

3-There is also a dispute on the point of whether the plaintiff will receive unpaid wages.

The plaintiff made a request in this direction, claiming that the minimum wage of the last 30 months had not been paid, and the defendant defended the rejection of the request by citing some records of payment at the employer.

In the expert report based on the provision, the amount earned by adding wages and travel premiums was determined as the total amount, and payments made by the employer under the name of salary and advance were deducted. 2 In the same report. as an option, in the plaintiff’s lawsuit petition, the minimum wage amount that was entitled to during the period subject to the request was determined due to the request for an absolute minimum wage, and the amount of payment made as a salary and advance was deducted from this amount.

Although the provision on the request was established by the court according to the first option, the rule of adherence to the request was exceeded in the specified calculation method.

The plaintiff employee requested only the unpaid minimum wage in the lawsuit petition, and the amount mentioned was calculated as TL 24,144.60 gross (TL 17,285.11 net) in the expert report. From the said amount, only payments made by the employer under the name of salary, excluding advances, should be decoupled and a provision should be made regarding the request in terms of the difference.

4- It is possible to prove by written evidence or witness statements that the truck driver was working on holidays and general holidays when he was abroad. In such studies, which are proved by witness statements, an examination should be made through passport and similar entry and exit records and a calculation should be made for holidays and general holidays coinciding with the period when the employee is abroad (Supreme Court 9.H.D. 11.04.2013 day, 2011/ 5273 E, 2013/ 11883 K.; Supreme Court 9.H.D. 24.01.2013 day, 2010/ 39272 E, 2013/ 2778 K.).

The court, the plaintiff’s termination as a truck driver made prior to the average time of international passport records and the number of Entry-Exit Records brought determination, national holidays and public holidays abroad where it is located should be dedicated to the periods of wages, while based on witness accounts, all working on national holidays and public holidays the acceptance of defective if it is required to break it.

F) The result:

It was decided unanimously on 13.11.2019 that the appealed decision should be OVERTURNED for the reasons written above, and that the appeal fee received in advance should be returned to the relevant person upon request.