Supreme Court 22. Civil Department
Base Number: 2012/3328
Decision Number: 2012/8399
“text of jurisprudence”
COURT : Izmir 9. Labor Court
DATE : 13/02/2012
NUMBER : 2011/556-2012/76
The plaintiff, the defendant 06.05.2005 -13.05.2011 working between the dates belonging to at work, the absence of an employment contract by an employer on the grounds of unfair that was dissolved, citing Labor severance pay he wanted to part with the collection of receivables.
The defendant, the plaintiff’s business by discussing with other workers working on 08.06.2011 the left, and in the days following does not continue to work without a valid excuse, arguing that the absence of an employment contract was terminated based on a justified reason, has asked for a dismissal.
The court decided to partially accept the case on the grounds that the defendant was unfair in terminating the employment contract, based on the evidence collected and the expert report.
The defendant party appealed the decision.
1-According to the articles in the file, the collected evidence and the legal reasons on which the decision is based, the defendant’s appeals, which are outside the scope of the following paragraph, are not in place .
2-There is a dispute between the parties as to whether the plaintiff worker has done too much work dec
A worker who claims to have done too much work is obliged to prove this claim. The rules for wage payrolls also apply here. The falsification of the payroll bearing the signature of the employee is conclusive evidence until proven. Unless the falsification of the payroll is suggested or proven by another statement, it is assumed that the employee who appears on the signed payroll will receive more work is paid.
Workplace records, especially documents showing entry and exit to the workplace, and workplace internal correspondence are evidence about the proof of overwork. However, in the event that the overwork cannot be proved by written documents, the parties must come to a conclusion with witness statements. In addition, some general cases that are known to everyone can also be considered at this point. It should also be investigated whether there is too much work according to the nature and intensity of the work that the worker actually does.
If it turns out that the signed wage payrolls are overpaid, it is impossible to suggest that the employee is actually doing more work. However, if there is a record of a worker’s desire that he will receive more work, proof of more work than appears on the payroll can be done with any evidence. In the event that the payrolls are signed and the claim is indifferent, the employee must prove with a written document that he has worked more than indicated on the payroll .Employee payroll is not signed in a case where more work of the fee accrual, including payments made through the bank charge different amounts for each month if the reservation record have been proposed, much work has been done on paid with written evidence leads to the conclusion that must be proven.
In the concrete case, it is seen that the excess work fee was accrued in the signed wage payrolls issued by the defendant for the 11-12 months of 2010 and 1-2-4 and 5 months of 2011, and the amounts accrued in the payrolls were deposited into the plaintiff’s bank account and paid without registration. Although it has been stated in the description section of the expert report based on the decision that these accrued months should be excluded from the calculation, it is seen that the period mentioned is not excluded when the calculation is made. The establishment of a provision based on an erroneous expert report required a violation.
3-Any other dispute between the parties is collected at the point of dec the employee is entitled to wages for non-working leave periods.
59 of the Law No. 4857. in the article, it is stipulated that if the employment contract expires for any reason, the wages for the annual leave periods that are not used for the employee will be paid at the last wage. Termination of the employment contract is a condition for the right to annual leave to become a wage. At this point, it does not matter how the contract ends and whether it is based on the justified reason.
At the point where annual permits are used, the burden of proof belongs to the employer. The employer must prove the use of annual permits with a signed permit book or an equivalent document. The employer, who is on the burden of proof in this regard, may offer the employee an oath.
In a concrete case, in the annual leave book submitted by the defendant, the plaintiff has signatures stating that he has used his forty-two-day annual leave, which he is entitled to according to the period of work. The minutes of the notice penalties issued by the employer to the plaintiff prior to termination, in which the plaintiff is illiterate, are also fixed with the content of the minutes. 206 Of the Code of Civil Procedure No. 6100 by the Court. since the conditions stipulated in the article did not materialize, it was accepted that the plaintiff’s signatures on the annual leave book could not be considered valid and the annual leave fee was determined for a period of forty-two days .
The witness, who is the plaintiff’s wife, has stated that she uses fifteen days of annual leave during the plaintiff’s working period. Although the plaintiff stated in the declaration petition regarding the evidence submitted by the defendant employer that the signatures on the payroll do not belong to him, he did not claim that the signatures on the annual leave book do not belong to him and did not bring a defense that they were taken away by fraud
206 of the Law No. 6100. the rule stipulated by the article on the way and conditions of issuing documents with seals, fingerprints and marks is not a form of validity, but relates to the form of proof. In this regard, this form of regulation provided for in the article mentioned above is only and only if the fingerprint or special mark of the seal is denied; in this regard, if the fingerprint is recognized, the document with the fingerprint is 206 of the Procedure. it is considered valid even if it has not been approved in accordance with the article. Signing and marking a document without reading it should be considered a valid document in terms of the principle of trust. Because even if the person who signed or printed the document, even if he does not have any information about its contents, cannot later claim that the document is invalid. In the face of this detected situation and taking into account the material and legal facts described above, it is impossible to decide on its acceptance when the case should be dismissed due to the fact that it will take an annual leave fee.
CONCLUSION: It was unanimously decided on 02.05.2012 that the appealed decision would be OVERTURNED for the reason written above, and that the appeal fee received in advance would be refunded to the interested party upon request.
