08 May Decision Of The Supreme Court On Whom The Burden of Proof Belongs
T.C SUPREME COURT 9.Legal Department Basis: 2015 / 34918 Decision: 2019 / 19490 Decision Date: 11.11.2019
SUPREME COURT DECISION
COURT :EMPLOYMENT TRIBUNAL
As a result of the case between the parties, the decision was requested by the attorneys of the parties to examine the appeal, and it became clear that the appeal requests were in duration. After hearing the report issued by the examination Judge for the case file, the file was examined, the need was discussed and considered:
SUPREME COURT DECISION
A) Summary Of The Plaintiff’s Request:
The plaintiff, working until his client 18/04/2009 date date 31/01/2012 International Truck is a driver, a minimum fee plus the cost of the final prime time is in 2-3 months, doing time, time for European countries is 550 euros per UK for 650 euros stipend received, and wrongful termination of employment that had been £ 2000 as the interpreter is paid with the statement that notice, severance pay, overtime, weekends, public holidays, notice of permit fees, 1,300 TL, including the receivables of the salary and expenses paid with the missing, was taken from the defendant and given to his client and sued.
B) Summary Of The Respondent’s Response:
The defendant has requested that the case be dismissed.
C) summary of the judicial process and Local Court decision:
At the end of the examination, according to the evidence collected, the expert report and the scope of the file, the plaintiff was found to be unfairly dismissed and entitled to notice compensation, and although the plaintiff worked on general holidays and did not use his annual leave, it was fixed with the witness statements, otherwise it was decided to partially accept the plaintiff’s case because it could not be adequately proved by the defendant.
D) Appeal:
At the time of the decision, it was appealed by the deputies of the parties.
E) Justification:
1-according to the evidence collected in the articles in the file and the legal reasons on which the decision is based, the parties ‘ Appeals, which are outside the scope of the following paragraphs, are not in place.
2-there is a dispute between the parties as to whether the plaintiff can qualify for the expedition premium.
The plaintiff claimed that every time his expenses were paid less than € 100 each time since 2009, and demanded the collection of the expenses paid less due to the deduction from the expedition premium, the plaintiff’s witnesses confirmed the claim, and the defendant admitted this claim.
It seems that this request was rejected by the court without any justification.
After examining the expert report based on the provision, it was understood that the burden of proof that the fee was paid belonged to the defendant and that the requested fee was paid when examining the shipping cost reports, tediye receipts, requests for deduction from the advance, it was reported that the plaintiff could not make a final determination about the incomplete payment of the expedition premiums.
Our department has passed an appellate review and the Supreme Court is 9. Legal Department 14.12.2015 date and 2015/ 21937 basic 2015/35379 Decision No.of the application file and other precedent files; Bakırköy 12 that the deduction in question has been applied since 2009 and the plaintiff continues to work in this way, the application has become a workplace condition. It is understood that the Employment Tribunal has a decision number 2012/587 dated 12.11.2012 and 2011/356 and that there will be no calculation of the claim with the bet as it sets a precedent in this case file.
The decision of the Local Court has been reviewed by our department and the Supreme Court has passed 9. 27.11.2014 date and 2013/1940 of the legal department 2014/35874 Decision No. in summary with the declaration “4857 of each fundamental amendment made against the workers during the period of the law 22. Article 22 of the amendment against the worker, in which it is necessary to be made in writing in accordance with the article and to have the written consent of the worker. because it is done outside the procedure in the article, it cannot be accepted that it has become a workplace condition, so the information and documents in the file must be evaluated and the plaintiff’s request, if any, must be placed under the provision.”
In the face of these explanations, the plaintiff’s claims for difference expenses should be made under the provision taking into account the information, documents and statements in the file, while the denial with written justification is incorrect.
3-the stamp duty rate should be taken into account as 7.59% when calculating from the account Root and additional reports contained in the file, while it is wrong to take into account as 0.66% incorrectly.
F) Result:
It was unanimously decided on 11.11.2019 to overturn the appeal decision due to the reasons written above, to return the appeal fee received in advance to the concerned person on request.
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