30 Apr Method Of Calculating The Fee To Be Based On Severance Pay
Summary:
it is agreed that the amount that falls to one day will be determined by dividing the total of payments made in the last year by 365 when reflecting the benefits, which can be measured in money or money other than the fee, into compensation (9.HD. 29.9.2005 day 2005/342 E, 2005/31714 K., Supreme Court 9.H.D. 12.4.1999 day 10/15910 E, 10/17119 K.). In terms of non-periodic monetary rights, the amount of payments made during the year is determined by dividing it by 365 days. For example, the travel (road) premium that the truck driver receives during the year may vary continuously and it may be difficult to calculate the basis for a certain period. On the other hand, it is unlikely to say that the allowance paid to the worker twice a year on religious holidays is for a certain period. Here, it would be appropriate to divide the annual payment amount into 365 figures. Finally, it should be noted that it is indisputable that once-a-year monetary aid (such as fuel aid) will be reflected in the compensation basis fee and will be carried out by dividing the annual amount by 365.
T.C.
Supreme
9. Legal Department
Principal No: 2014/22935
Decision No: 2015/33774
K. Date: 30.11.2015
Y A R G I T A Y K A R A R I
A) Summary Of The Plaintiff Request:
The plaintiff, while working as a rodage machine operator in the workplace belonging to the defendant, claimed that the employment contract was unfairly terminated by the employer, and that if some payment was made, it was incomplete, he requested notice compensation, and in the case of the merged, he requested the collection of severance payment.
B) Summary Of Respondent’s Response:
The defendant requested the dismissal of the case, arguing that upon termination of the employment contract, the plaintiff was paid the severance and notice compensation he was entitled to.
C) Summary Of Local Court Decision:
The court, based on the evidence collected and expert report, decided to accept the case on the grounds that the plaintiff was entitled to difference seniority and notice compensation for the payment made to the defendant employer after termination.
D) Appeal:
The defendant appealed the decision.
E) Citing:
1-according to the legal reasons on which the decision is based by the evidence collected in the file, the defendant’s appeals that are outside the scope of the following clause are not in place.
2-there is a dispute between the parties at the point of pay that should be considered in the account of severance pay.
The wage to be based on the severance payment account is the last wage of the worker. In other words, it is the wage that is valid at the time of termination of the employment contract. Since termination occurs on the date of termination of the notice, the charge at the date of termination of the notice must be based on the date of termination of the notice. In the case of termination by the employer without recognition of notice and without payment of notice compensation (in full), the employee whose employment contract has been terminated must also benefit from the increase in wages imposed in the workplace until the end of notice provision and his compensation must be calculated based on this increased wage.
The wage to be considered in the severance account is the gross wage of the worker. In this case, severance pay is calculated by taking into account the gross wage determined without deductions such as insurance premium, tax union dues, and not over the actual wage of the worker.
The monthly fee based on the compensation shall be determined by multiplying the hourly rate by seven and a half and then thirty. On the contrary, it is not correct to calculate the monthly wage based on the number of days the worker actually works.
The concept of final wage refers to the last wage that the worker is employed in the context of a working relationship and is entitled to the wage. In the case of the suspension of the employment relationship and termination of the employment contract within the suspension period, the wage to be considered in the severance pay account must be the last wage earned before the suspension of the employment contract.
During the trial of the reinstatement case, our department’s decisions about the addition of up to four months to the term of Service have stabilised (Supreme Court of Appeals 9.HD. 3.10.2005 day 2005/16932 E, 2005/31926 K.). The end of the employment period of one month is accepted as the date of termination. For this reason, the severance pay ceiling on the termination date should be observed. Likewise, the fee to be based on compensation must be the fee at the date of termination, in accordance with the provision of Article 14 of the Law No. 1475.
In determining the wage that will be based on severance pay, in addition to the actual wage mentioned in Article 32 of the Labor Law No. 4857, the money provided to the worker or the benefits that can be measured with the money are taken into consideration. Accordingly, bonuses, ongoing premiums, fuel allowance, clothing allowance, rent, lighting, service allowance, food allowance and similar payments are taken into consideration in the account of severance pay. Private health insurance benefits or life insurance pirim payments provided to the worker are also included in the concept of benefits that can be measured with money and should be added to the compensation based on the wage. Although pirim calculated according to sales figures or other data may vary, it should be evaluated within the concept of extended remuneration in the severance pay account.
Protective clothing provided to the worker, towels provided for use in the workplace, Soap Aid, incidental overwork, national holiday general holiday, week holiday receivables are not taken into account.
In practice, it is observed that payments are made under the name of road premium according to the distance travelled in terms of heavy vehicles and especially truck drivers. For the most part, a flat wage is paid at the minimum wage level, and the base portion of the wage is provided with the specified premiums. It is not possible to admit that a truck driver travelling abroad only works for minimum wage. In this respect, payments made under the name of road pirim should also be taken into account in determining the compensation based fee. Our department’s decisions are ingrained in that direction. (Supreme Court 9.HD. 7.2.2005 day 2005/950 E, 2005/3328 K.)
In the decisions of our department, it is accepted that the amount that falls to one day is determined by dividing the total of payments made in the last year by 365 in reflecting the benefits that can be measured in money or money other than the fee (9.HD. 29.9.2005 day 2005/342 E, 2005/31714 K., Supreme Court 9.H.D. 12.4.1999 day 10/15910 E, 10/17119 K.). In terms of non-periodic monetary rights, the amount of payments made during the year is determined by dividing it by 365 days. For example, the travel (road) premium that the truck driver receives during the year may vary continuously and it may be difficult to calculate the basis for a certain period. On the other hand, it is unlikely to say that the allowance paid to the worker twice a year on religious holidays is for a certain period. Here, it would be appropriate to divide the annual payment amount into 365 figures. Finally, it should be noted that it is indisputable that once-a-year monetary aid (such as fuel aid) will be reflected in the compensation basis fee and will be carried out by dividing the annual amount by 365.
In terms of monetary rights paid regularly and in certain periods during the year, the severance pay must be calculated according to the final wage. Since severance pay is calculated over the last wage of the worker and the average of the wages that have increased during the year is not taken, a similar solution should be sought in terms of wage attachments. For example, if the three bonuses that the worker receives during the year are less than the Old wage, but the last bonus is paid over the last wage of the worker, the bonus that must be taken into account in determining the base wage for the compensation should also be this last bonus. It is also fair that the calculation is made by dividing the number of days in the period in which the last slice of bonus belongs. In more concrete terms, if there are four bonus payments per year, each bonus is applied for a 3-month period. By dividing the employee’s increased bonus by ninety days to which it belongs, the amount of the bonus falling to one day will be more in line with the legal rule that the severance pay will be calculated from the last wage. It is possible to do the same for payments such as road and food assistance. The amount of such payments, which are assumed to be made monthly to the worker, should be determined by dividing the portion paid for the last month by the number of days actually worked. Accordingly, in terms of the monetary rights paid periodically and increased during the year, the amount to be reflected in the compensation based on the compensation can be determined more accurately by dividing the final period payment into the tranche days. The decisions of our department are in this direction (Supreme Court 10.10. 2008 day 2007/27615 E, 2008/26209 K.).
In the concrete case, in the expert report based on the judgment, when calculating the plaintiff’s compensation based fee, the monthly average of the payments made in the last year should be taken into account in the bonus and fuel fee, which is understood to be paid regularly by the employer to the plaintiff, while considering the amounts in the last payroll of the plaintiff
F) Result:
It was decided unanimously on 30/11/2015 that the decision of the appeal was overturned due to the above-mentioned reason and that the application fee received in advance should be returned to the relevant person upon request.
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