T.O
SUPREME
9. LEGAL DEPARTMENT
PRINCIPAL NO: 2015/26859
DECISION NO: 2018/84
DECISION DATE: 15.01.2018

>TERMINATION OF THE EMPLOYMENT RELATIONSHIP AT THE REQUEST FOR SEVERANCE PAY, OVERTIME PAY, ANNUAL LEAVE FEE AND NATIONAL HOLIDAY AND GENERAL HOLIDAY FEE CLAIMS-NO LEAVE MAY BE GRANTED FOR WORK ON NATIONAL HOLIDAY AND GENERAL HOLIDAYS

Summary: The plaintiff resigned conditionally by stating why. He has retirement conditions excluding age at the date of termination, as he asserted health reasons in his resignation petition. Therefore, the difference must be made under the provision of severance. The documents submitted by the defendant and bearing the signature of the plaintiff belong to the years 2008 to 2009 and the defendant has not submitted the document for the national holiday and general holiday works for the years 2010 to 2013 and even if the document is presented will be invalid, the national holiday and general holiday receivables for the years 2010 to 2013 must be calculated and Free time in the Labor Code is provided for working overtime. If the worker has worked on the holidays, the wage must be paid in return. This does not mean that you will not be eligible for the holiday fee. Because it is not in accordance with the law to give free time or permission for holiday work.

The plaintiff requested that severance pay be paid for overtime pay, annual leave pay and national holiday and general holiday pay.

The Local Court has decided to partially accept the case.

It was appealed by the lawyers of the parties during the sentencing period, although a hearing was requested by the defendant’s lawyer; HUMK.in accordance with article 438 of The Nun, the request for a hearing was rejected from the amount and the examination was decided to be made on the document after the report prepared by the examination Judge was submitted, the file was examined, the need was spoken and considered:

THE DECISION OF THE SUPREME COURT

The attorney of the plaintiff said that his client worked as a master instructor and finally as a measurement and Evaluation Officer in the workplace of the defendant’s employer between 01/09/1995 and 20/09/2013, most recently 1570,00. He was working with a fee of TL 20.000,00 in return for receiving a resignation petition from him by the employer. Claiming that the payment was made in TL and that this payment was paid in installments, he requested that the balance be collected from the defendant for overtime, annual leave, national holiday and general holiday receivables with severance pay.

The defendant’s attorney requested the dismissal of the case, arguing that the plaintiff worker could not claim severance pay because of his resignation, that the working period of the plaintiff worker did not exceed 45 hours per week, therefore he would not receive much work, that he was paid for his work during national holidays and holidays and that he would not receive

The court, based on the evidence collected and expert report, and the proposal that the employment contract between the parties was terminated by way of ikale came from the plaintiff, therefore, on the grounds that the plaintiff did not qualify for severance pay, worked overtime, had not used permits, used holiday leave, the case was partially accepted and it was decided to refuse the severance pay and

Attorneys for the parties appealed the decision.

REASON

1-according to the articles in the file, the evidence collected and the legal reasons on which the decision is based, the attorneys of the parties are not in place to appeal appeals that are outside the scope of the following clauses.

2.there is a dispute between the parties about whether the employment relationship ends with the resignation of the worker.

In general, the right to terminate the employment contract is a right that gives the power to abolish the employment contract immediately or after a certain period of time by a unilateral declaration of Will which must be directed against the other party. The immediate termination of the labor contract for the right reason is regulated in Article 24 of the Labor Law No. 4857. The normative regulation of the preliminary termination notice of the worker is addressed in Article 17 of the same law. Other than that, the resignation of the worker in the Act is not specifically regulated.

The termination of the employment contract without a justifiable reason and without prior notice should be considered as resignation. The business relationship ends when the will to resign reaches the opposite party. Although the acceptance of the resignation by the employer is not mandatory, there can be no actual resignation if the employer petition has not been processed and the worker continues to work in the workplace. However, in the event of a merger of the parties ‘ will to work for a certain period of time despite resignation, it should be accepted that the employment contract has expired by way of substitution at the end of the agreed period.

Contingent resignation is not valid as a rule. In practice, the most common form is that the request to leave, provided that the worker’s right to notice and severance pay is paid, should not be considered as a resignation, but as a requirement to make an annulment contract.

It is also common for the will of the worker in the resignation petition to be annulled. If the employer demands a written resignation from the worker with the promise of immediate payment of compensation and similar pressures, and the worker complies with it, no actual will to resign can be mentioned. In this case, it must be accepted that the termination was carried out by the employer.

A resignation petition issued as a result of pressure from the employer cannot be valued. In such cases, it is accepted by our office that the termination is carried out by the employer and that, however, the termination of the employer must be evaluated whether it is justified or not (Supreme Court of Appeals 9.HD. 3.7.2007 day 2007/14407 E, 2007/21552 K.).

It is not right to give validity to the resignation in the event that the employer receives a resignation petition after his Will has been annulled while the worker has the right reasons for immediate termination and will go to a termination accordingly. In this case it should be concluded that the worker has rightly terminated the contract.

Although the resignation document is based on, the worker’s notice and severance payments have been paid, the notice made to the Employment Agency of Turkey mentions the termination of the employer in contradictory cases, each concrete event in terms of the effect of this contradiction on the validity of the resignation should be evaluated.

If the statement in the resignation document carries a general content, there is no unlawful way for the worker to specify concrete reasons in the case petition. In this case, the real situation behind the resignation should be investigated.

In the event that the employment contract is terminated by resignation, the worker is not able to benefit from the work assurance provisions, nor is he entitled to notice and severance payments. Documents of the type of resignation need to be handled rigorously, as the burden of the worker paying notice compensation to the employer may arise in the event of resignation. The objection to the signature or the objection to which additions are made to the text must be examined in absolute technical terms.

The provisions of the contract stipulating that the employee will be paid severance pay even in case of resignation and workplace practices are valid according to law No. 4857, in which case the severance pay must be calculated according to Article 14 of the Law No. 1475 and the ceiling of the severance pay in the said article must be observed. It should be noted that the severance pay ceiling set out in the said law is of absolute command.

In the factual dispute, the plaintiff resigned conditionally by stating cause. He has retirement conditions excluding age at the date of termination, as he asserted health reasons in his resignation petition. Therefore, it is wrong to accept and reject partial payments while the difference severance pay should be ruled.

3-The claimant worker is entitled to wages in return for his work on national holidays and general holidays and there is a dispute between the parties

Free time is provided for working overtime in Labor Law No. 4857. If the worker has worked on the holidays, the wage must be paid in return. This does not mean that you will not be eligible for the holiday fee. Because it is not in accordance with the law to give free time or permission for holiday work.

The provision is mainly in the expert report, the plaintiff in the ceremony with the official holidays (23 April, 19 May and 29 October) runs, but the defendant presented by the plaintiff on the grounds that the permit uses to allow workers to work holidays national holidays and public holidays declared by the absence of plaintiff’s claims. However, the documents submitted by the defendant and bearing the signature of the plaintiff belong to the years 2008 to 2009 and the defendant has not submitted the document for the national holiday and general holiday works for the years 2010 to 2013 and even if the document is presented will be invalid, the national holiday and general holiday receivables for the years 2010 to 2013 must be calculated and The refusal of the plaintiff on the grounds that the work could not be proved, although the plaintiff worked on the specified days was confirmed by the testimony of the plaintiff.

3-there is a dispute between the parties as to whether the plaintiff has done much work or not.

In the report of the expert witness, the calculation was made with the finding that the plaintiff’s work on weekdays did not exceed 45 hours but was entitled to excess work pay due to his work on Saturday.

The file contains documents that the plaintiff used free time in exchange for his extra work on Saturday. These documents are not subject to an evaluation, and it is wrong to be judged by incomplete examination and evaluation.

Conclusion: it was decided unanimously on 15.01.2018 that the decision of Appeal was overturned due to the reasons stated above and that the application fee received in advance was returned to the interested parties upon request.