T.C. SUPREME
9. Legal Department Principal No: 2018/6134
Decision No: 2018/14964
Decision Date: 09.07.2018
THE DECISION OF THE SUPREME COURT

TRIBUNAL:EMPLOYMENT TRIBUNAL
CASE TYPE: RECEIVABLE
Examination of the decision made as a result of the case between the parties, from the defendants on appeal …
Tourism Stone. Auto. Food Ur. Clean. Speed. Iletişim San. .Ve Dış Tic. Co.Requested by the deputy of Şti,
it is understood that appeals are pending. Arranged by the examining magistrate for the case file
after listening to the report, the file was examined and considered as necessary.:
THE DECISION OF THE SUPREME COURT
A) summary of the plaintiff request:
Acting claimant, employee and rights of defendant employer between 15/11/2007-25/07/2011
Sunday every Saturday that the claimant who justifiably terminated the employment contract due to non-payment is working,
severance pay, annual leave fee, overtime, claiming that some labor receivables have not been paid
pay, Week break fee, minimum subsistence allowance, notice distribution fee and penalty deduction
he must have wanted to.
B) summary of Respondent’s response:
The defendant igdaş deputy said that no animosity could be directed at his client and that he would receive the work on Sunday.
arguing that acceptance by his client is not possible and that the claims and demands are unwarranted
he asked for a dismissal.
Defendant … the attorney of the company, the plaintiff who works with the term work contract, ends the tender between his client and Igdaş
he said he had released his client upon his termination, that the plaintiff had been shown other work, but that the plaintiff had done Igdaş’s work.
he said he had started work at another company that did, he had no work on Sunday, and claims and demands were unwarranted
he asked for a dismissal, arguing that it was.
The other defendants did not respond to the lawsuit.
C) summary of the decision of the Local Court: according to the evidence collected by the court and the expert report, the plaintiff’s workplace personal and insurance registry
from the examination of the records; the defendant between 15/11/2007 and 25/04/2008 … construction
At 25/04/2008-09/06/2008 at non-litigation … construction company, 17/07/2008-
Between 13/08/2009 at the defendant … Limited Company, between 01/09/2009-12/09/2010
at defendant…, between 07/09/2010-31/2011 at defendant … 01/06/2011-
Defendant between 20/06/2011 and 21/06/2011 and 18/08/2011 at the defendant … …
Notice of termination of employment contract at the company of the last employer, or
system distribution, which is the new firm in the record of the claimant by this company, without any documentation
25/07/2011, the claimant is found to have passed his services to the company … his registration has been terminated
as of date, he has terminated his employment contract due to non-payment of wages and other legal rights.
the claimant’s claim is that the date of the start of work in the new company is 13/08/2011, the plaintiff heard
his witnesses confirmed the plaintiff’s claim, that the plaintiff was not able to get their money because he was fired
they reported that he had left, payments were delayed by about 1 month, and that the plaintiff had taken Igdaş’s meter reading job
the defendant’s witnesses, who listened to reports that he had done, said that the plaintiff had been fired because he had found work in Iski.
he stated that he was leaving, as well as both parties witness the plaintiff’s fee and the excess work he did and the week
the expert report dated 22/05/2014 stated that he had made detailed statements on the work of the holiday
where detailed calculation is made, by the court according to the scope of the entire file, the plaintiff is asked by the defendants
The service purchase agreement concluded Regarding the job of reading the counters of igdaş and the job of reading the counters
the principal employer of Igdaş, which the respondent gives to the subcontractors, is the sub-employer of these companies.
that is, contracts with sub-employers vary by tender according to the nature of the work done
termination of work of subcontractors where there is an indefinite term employment contract taking into account the following
as the claimant’s job is terminated, but in reality the job of the principal employer is continuous, continuing,
other subcontractors, the work continued uninterrupted, the claimant in the last subcontractor company
his contract also expired on 25/07/2011 due to non-payment of his fee, the claimant was told that a
kayden claims he was fired because he started working at another company
The claimant as of 25/07/2011 has no legal value since it started on 13/08/2011
the termination should be assessed, according to the expert report it is fixed that their fees have not been paid,
termination of the claimant’s contract of employment based on this reason is justified by Article 24/II-e of Law No. 4857,
seniority of the claimant to which the claimant will deserve severance, as much as the amount calculated by the expert witness to the claimant
that his compensation should be awarded, as calculated in the expert’s report of the plaintiff’s excess … ,
the defendant’s employer that he worked during the Week holidays, paid the plaintiff’s overtime pay and the week vacation fee
long-term calculation, which cannot be proved by payroll or equivalent document
30% Fair discount on the amount of the week vacation … and the amount stated to have been done
and the week’s holiday fee should be given to the claimant,
the amount calculated that the right of Leave has been exercised or that the monetary provision has been paid after termination
with the paid leave book or equivalent document signed by the defendant who is on the burden of proof
it could not be proven.

This request should also be given to the plaintiff, the plaintiff’s minimum livelihood allowance
the claimant’s distribution of notices and other fees, since the claim could not be proved
the principal employer is the defendant.
Law No. 4857 of igdas 2/6. the last employer is responsible for all receivables in accordance with the clause
in terms of severance pay, other defendants will have limited liability in the amount calculated in the expert’s report in terms of the duration of their employment, because they will take more … and week breaks … the calculation is made in terms of the duration of their company’s employment … the company is responsible with Igdaş for the notification and permission.
where the employer will be jointly responsible, the objection to the animosity is in place since the defendant Igdaş is the principal employer
the defendant Igdaş in terms of liability in service purchase contracts and administrative specifications.
this Agreement shall be binding only on the parties, even if it transfers responsibility to the companies in which it serves.,
concluding that there would be internal affairs, which could not eliminate the rights of the plaintiff arising from the law
Judgment No. 2014/269 of 02/10/2014 was issued, and the defendant of this decision …Ş., … Turzim
Transportation Automotive Food Products Are Clean. Speed. Communication industry and Foreign Trade Ltd. Ltd. Regents
9 of the Supreme Court on appeal. By Decision No. 2014/37749 dated 15/03/2016 of the Legal Department
incomplete review and inspection as to whether the claimant is entitled to the week break fee
15 from meter reading records in terms of duration of service, where provision is made according to unfavorable report-
Around 20 days … there are visible months, these periods are not evaluated, why premiums are Month by month
that the documents of incomplete payment were corrupted on the grounds that they were not brought, and that the notice of impairment was complied with,
after the breakdown, the acting plaintiff repeated his previous claims, the acting defendant … his previous defences,
documents showing why the premiums specified in the notice of impairment are paid month by month, meter reading,
Supreme Court with opening, closing records 9. Together with the court file by the legal department
upon notification of the files of similar nature examined, these files were also brought,
the documents and the whole file were evaluated and the additional report dated 16/04/2017 was taken, the report was brought
considering that there is a difference between the documents and the subpoenaed service schedule,
there is no need for a change in the length of service in the report, only the week’s holiday fee
calculation should be done in terms of the cost of the week holiday as calculation
The report dated 10/10/2017 was received from the same expert on the objection to this report, which determined TL 332.56,
the expert’s report stated that objections were not in place and that no changes could be made to the report.,
this report is deemed worthy of acceptance by the court, the plaintiff’s counters from the defendants Igdaş
the respondent subcontractor of the counter reading contract and the service purchase contract concluded in relation to the reading job
given to companies, that these companies are sub-employers, Igdaş is the principal employer,
sub-employers vary by tender according to the nature of the work, but contracts follow each other
considering that there is an indefinite term employment contract, the work of the plaintiff as the end of the work of the subcontractors
termination of the job of the actual employer is continuous, continued, other subcontractors to companies
the fee of the claimant’s contract at the last subcontractor company, which was commissioned, the work continued uninterrupted
termination on 25/07/2011 due to non-payment, claimant to work in another company
he claimed to have been dismissed for his work at the other company, kayden on 13/08/2011
the termination of the claimant as of 25/07/2011 has no legal value since it started
it is fixed that they should be assessed, that their fees are not paid according to the expert report,
termination of the claimant’s employment contract based on this reason is justified by clause 24/II-e of Law No. 4857,
seniority of the claimant to which the claimant will deserve severance, as much as the amount calculated by the expert witness to the claimant
that his compensation should be awarded, as calculated in the expert’s report of the plaintiff’s excess … ,
payroll or equivalent value of the plaintiff’s overtime pay by the defendant’s employer
but it could not be proven because the calculation is done with the document specified the amount that you will receive a long-term … more
the defendant, who is on the burden of proof that the right of Leave has been exercised, or that the monetary provision has been paid after termination, cannot be proved with a paid leave book or equivalent document bearing his signature; this demand should also be given to the plaintiff, that the plaintiff will receive a minimum livelihood allowance.
because it cannot be proven, the claimant has been handed out notice and has been cut off from other charges
as the matter cannot be proved, it is necessary to reject these demands, the principal employer is the defendant Igdaş No. 4857
2/6 of the act. notice and leave of the last employer, for which he is responsible for all receivables in accordance with the clause
the defendant is responsible for the receivables together with Igdaş and the other defendants in terms of severance pay
the amount calculated in the expert’s report will be limited liability in respect of the time they are employed,
it’s too much … and it’ll take a week off … so you can calculate the amount of time your company is running. …
animosity that the company and the principal employer will be responsible together, since the defendant Igdaş is the principal employer
liability in service purchase contracts and administrative specifications, where the objection is not in place
although the respondent has transferred the responsibility of Igdaş to the companies in which it serves, this contract is not valid.
eliminate the rights of the plaintiff arising from the law, that it will only bind the parties, that it will have internal affairs
issued after the provision of research and documents specified in the Supreme Court decree
according to the final expert report, there was no change in the period of service in the previous decision; and
by excluding the distortions of the previous decision of our court in terms of merit and liability
since it’s been finalized, the severance pay, the excess …
it is necessary to repeat the same provision established in terms of, but the claimant will receive a week holiday fee
Sunday work as requested and expert in the court of Appeals to disrupt these studies as stated in the decree
since the calculation is made and the calculation is based on witness statements, the expert has calculated
more … 30% appreciation discount on the fee of the weekend … 232.79 TL Sunday of the demand
since it is a work, it is necessary for the plaintiff to be charged as a Sunday fee.
in respect of the other requests rejected in the previous decision, the previous provision shall be excluded from the annulment
to the conclusion that the rejected demands of the previous decision must be repeated in the same way.
seniority tazmiant, overtime pay, Sunday work fee, leave fee
it is decided that their demands will be accepted and other demands will be rejected.
D) Appeal:
Within the time of the verdict, the defendant has been appealed by the attorney of his company.

E)Citing:
1-according to the articles in the file, the evidence collected and the legal reasons on which the decision is based, the defendant …
The company’s appeals that fall outside the scope of the following clauses are not in place.
2-in the concrete dispute “the first decision of the court with our department’s Decree No. 2014/37749 ” decision
within the period the defendant … has been appealed by the attorney of the company and the attorney of the defendant … 1-in the file
according to the articles, the evidence collected and the legal reasons on which the verdict is based, the defendants … gas
Distribution A.P. and…, tourism, transport, automotive, food products, cleaning services, communications, industry and Foreign Trade Ltd.the appeals that fall outside the scope of the following clauses are not in place. 2-the matter of whether the plaintiff worker is entitled to the week break wage is a matter of dispute between the parties…. If Sunday Sunday is calculated according to the meter reading records of…, in the case of concrete discrepancy, the use of the week holiday on the Sunday
as there is no obligation, the week holiday fee calculated under the name of Sunday
whether it is calculated for continuous 7-day studies or for 7-day periods
is it calculated for periods of non-stop 24 hours rest just because it is worked on Sunday?
it has to be clearly revealed in the expert’s report. This is the case in the report of the main expert.
since there is no clarity and the expert report is not conducive to the audit with this aspect, this expert report shall be submitted to
establishing provision on the basis is erroneous. The work to be done by the court is to be supervised in the specified matter
it is convenient to go to the conclusion by getting an expert report. 3-in terms of the claimant’s service period, meter reading
there are months in his records … that appear to be around 15-20 days. In the service casting ruler, premiums are first
except for a few months, it was generally paid on days such as 17, 18, 20 days.The prosecution witness said, ” Normally 16
Saturday and Sunday between these days … we were working for 21 days as a matter of fact.
9 days a month was also working, but these days at least two or three days in the opposite Best
we would go to the other business of the group, ” he declared. Court
admission by the claimant that he also worked for non-premium days in the service casting ruler
judgment was established. The plaintiff’s record should be evaluated … for the duration of his service. But
while this assessment is carried out, the following points should be paid particular attention; by our department on the same day
in some of the files of similar nature examined together, the meter read-on-off records
in his examination, it was found that his days on these works were not the same on all lists.
For example, on the day the worker’s work did not appear in the casting for reading records, close
his records show the work of the worker. Therefore, counter reading records, counter opening records,
counter closing records, notice distribution records should all be brought separately, in one of these records
or on days when the plaintiff does not appear to work in a few of them, where the plaintiff appears to work in other records.
it should be examined that it does not appear. … documents showing why premiums are being paid month by month
he should be subpoenaed. Witnesses should be heard again if necessary. This review will be conducted and
according to the research, whether there will be changes in the length of Service accepted by the plaintiff
conclusion should be reached, if there is a change in the agreed period of service, all receivables shall be subject to
it should be considered that it may be affected.”corrupted by reason.
The calculation of the week holiday receivables made after the breakdown and taken as the basis of the decision
it is understood to be appropriate.
However, in terms of length of service, the plaintiff’s attorney did not make a statement after the breakdown, similar
he has not put forward any new evidence other than the files. Therefore, time of service based on calculations
only available in the file is the service breakdown chart, other … records and counter reading sent by the defendant
it should be done according to the days in which the plaintiff was found to be working in the records, the outcome of which will be the case
the impact on subject receivables should also be addressed separately.
F)RESULT:
An appeal against the annulment of the appealed decision due to the reasons stated above,
it was unanimously decided on 09/07/2018 to return the fee to the relevant person upon request.