Workers Cannot Be Employed During The Nonbusiness Day

09 Aug Workers Cannot Be Employed During The Nonbusiness Day

9th Legal Department

Base Number: 2016/7708

Decision Number: 2019/18054

“Case Law Text”

COURT : Labor Court

As a result of the case between the parties, the decision was requested by the defendant’s attorney to examine the appeal, and it became clear that the appeal requests were pending Dec. 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:
Attorney of the plaintiff claimed that his client worked as a transport driver and purchasing staff from 17/10/2007 to 14/03/2014 in the defendant’s workplace, the employment contract was terminated by the defendant unfairly and without notice and maliciously, and asked the defendant to collect severance, notice compensation and wages, overtime pay, national holiday general holiday fee, week holiday fee and annual leave fee.
B) Summary Of Respondent’s Response:
The defendant’s counsel, plaintiff’s started on 21/11/2007, in the history of 21/001/2008 quit of his own accord, and again a second time in the history of 16/04/2009 left of his own accord into that absence will receive a fee as claimed in the petition, it uses the permissions of annual leave, the payment of the fees of his work for the holidays, weeks of use, the study of religious holidays, arguing that a dismissal has asked for.
C) Summary Of Local Court Decision:
Based on the collected evidence and expert report, the court decided to partially accept the case on the grounds that the plaintiff had the right to claim severance and notice compensation, since it was understood that the plaintiff worked for a total of 5 years and 28 days in two periods in the defendant’s workplace, because the contract of employment was unfairly and unannounced by the defendant’s employer.
D) Appeal:
The defendant’s attorney appealed the decision.
E) Justification:
1-according to the articles in the file, the evidence collected and the legal reasons on which the decision is based, the defendant’s appeals that fall outside the scope of the following paragraphs are not in place.
2-there is a dispute between the parties in terms of the account of the week decal fee.
46 of the Labor Law No. 4857. in accordance with the second paragraph of the article, the employee’s wages are paid in full without the provision of a job for the day of the week holiday that is not worked. Although it is not regulated in the law how to calculate the wage of an employee working during a week’s vacation, the opinion that the work performed during a week’s vacation in our apartment will be considered excessive work, accordingly, the wage should be paid with a fifty percent increase (Supreme Court 9.H.D. 23.5.1996 day 1995/37960 E, 1996/11745 K.). Accordingly, if it is worked during the week’s holiday, it should be paid as one and a half hours in addition to a day that should be paid without the equivalent of work.
Week holiday fees are calculated on the period fee worked. It would not be correct to calculate according to the final fee. In this case, it is not enough to know the last wage of the employee to account for the weekly holiday wages. The amount of employee wages should also be determined during the period subject to the request. If the employee’s wage for past periods cannot be determined, the ratio of the known wage to the minimum wage and the determination of the unknown wage accordingly are accepted by our department. But in cases such as when an employee receives various titles by being promoted during his work in the workplace, or recently benefits from a collective bargaining agreement, it is not right to consider the ratio of the last known wage to the minimum wage in terms of past periods. In such cases, fee research should be carried out from the relevant professional organizations for unknown periods and other evidence in the file should be evaluated together and concluded.
For jobs paid per piece or according to the amount of work performed, the amount of wages earned during the payment period should be calculated by dividing by the number of days worked. In terms of workplaces where the percentage procedure is applied, the sum of the wages obtained by the worker that week is divided into six and the holiday fee is obtained. The weekly holiday fee in the form of work in which the percentage procedure or piecemeal fee is provided must be calculated according to the increased part of the determined daily fee.
In a concrete dispute, the court must be paid within the monthly fee of 1 day, which must be paid without working in terms of Week holiday days, while the provision that you will receive by making an account of 1.5 days for an unpaid week holiday should be made under 2.5 days, the decision of the erroneous expert report that calculates is not accurate.
3-in the expert report based on the court’s decision, the national holiday general holiday fee deserved by the plaintiff was calculated as TL 855.15 net. In the grounds of the decision by the court, it was announced that a reasonable discount based on the presumption was made by 1/3 of this receivable, and accordingly, it is wrong to rule for $ 683.47, while a net of $ 570.10 should be imposed.
4-HMK of not specifying in the provision whether the amounts stipulated are net or gross.pp. 297/2. it was not thought to be contrary to the article and would lead to hesitation in execution.
F) Result:
A unanimous decision was made on 14.10.2019 to overturn the appeal decision due to the reasons written above, to return the appeal fee received in advance to the relevant person on request.