T.C. Supreme Court 22. Legal Department

Principal No: 2015/16933
Decision No: 2017/19050

Decision Date: 25.09.2017
The Decision Of The Supreme Court
Tribunal:Employment Tribunal
CASE TYPE: RECEIVABLE
Attorney of the plaintiff to review the decision made as a result of the case between the parties
asked by, it was understood the appeal was pending. Review Judge for case file …
after listening to the report held by the file was examined, the need to be discussed and considered:

SUPREME COURT DECISION

Summary Of Plaintiff Request:
Attorney of the plaintiff; that his client works as a branch sales manager at the defendant’s workplace, working hours
Although 09: 00-18: 00 08: 00-08: 30 to come to work at 20: 30 and later
working, not being paid much work, also the employer of milk leave during the period of birth
Although it is meal time from 12:30 to 13:30, it is determined from 12:00 to 14:30, except 3 or 4 times
overwork by stating that he was unable to use his milk permit due to customer appointments and company meetings
he demanded that the fee and the milk leave fee be collected from the defendant.
Summary Of The Defendant’s Defence:
Defendant’s attorney; plaintiff working with salary plus premium, extra work included in the fee, 3 months
9 months of milk leave except maternity leave, in case of kullanılmayacağınız pay
the dossier requested a dismissal of the case because there was no regulation.
Summary Of The Court Ruling:
The court held that the working hours of the plaintiff were determined by him and limited to 270 hours.
that excess work must be accepted within the wage, the plaintiff’s salary + premium duly working
according to his and the results of his study he also received variable premiums from the employer, exceeding 270 hours
any document or statement reflected in the file that he was working on could not be identified,
the plaintiff declared that the worker could not use the milk permit, although he demanded the fee of the Supreme Court 9. Law
Apartment on 01/02/2012,
2010/33549-2012/2569 based on Decision No. according to the warrant, the permission is granted if the worker is added to milk
where there is no rule in the labour code that a wage shall be paid, the sanction shall be laid down in Article 104 of the Labour Code.
it is stated in the article that the employer should be fined, so that the claimant
even if he was not granted a milk permit, he would not be able to charge a fee in return.
it has been decided to decline.
Appeal:
The decision was appealed by the plaintiff’s attorney.
Reason:
1-according to the articles in the file, the evidence collected and the legal reasons on which the decision is based,
the plaintiff’s appeals that fall outside the scope of the following clause are not in place.
2-dispute between the parties on whether the claimant is entitled to receive milk permits
is available.
74/7 of Labor Law No. 4857. article “women workers to breastfeed their children under one year old
for a total of one and a half hours per day milk is allowed. What hours of this period and divided by how much
the worker himself determines to be used. This period is counted from the daily working time. editing in the form of ”
is available.
Act No. 4857, 104. contrary to the provision of this article regarding the regulation of the work of the employer
milk permit by introducing the regulation in which a fine will be imposed if he acts
its use has been secured under administrative sanction.
Our previous opinion regarding the milk permit is based on 13.06.2016 en 2015/12878 2016/17527
Resolution No. 69/3 of the Labor Law No. 4857 ” in the paragraph “night work of workers seven and a half
shall not exceed the hour, according to the provision that the night work shall be paid on a higher wage.
although there is no legal regulation, this situation is clarified by the established case law of our department
agreed that extra work done at night should be paid on a higher wage
has been carried out. A similar comment on the issue of milk permits should be made to the fairness and … and the law
it was judged to be better suited to the purpose of the putter.
In the aforementioned decision, ;
“Under the law, women workers are required to breastfeed their children for 1.5 hours a day “otherwise and but not the worker
to be in favor of a period arrangement between the parties can be made, such as) milk permit issue
74/7 of the Labor Law No. 4857, which is not an initiative of the employer. under the clause, this is
the worker shall determine the time between the hours and the amount of time to be used.
if the worker is required to use a milk permit but is not allowed to use it,
determination of non-kullandırılmadan time and calculation of 50% increased fee
the adoption is 50/2 of the Constitution. 4857 by adopting article and objective interpretation
it was decided to overturn the provision on the grounds that it would be more appropriate to the spirit of the numbered law”.
In the concrete dispute, the claimant cannot use the milk permit for a period of time determined and charged a 50% increase.
when the calculation should have been made, the rejection of the request by written justification was without a hit and required the distortion.
Result:
If the decision of Appeal is overturned due to the reasons stated above,
upon request, a unanimous decision was made on 25/09/2017.