In order to work on national holidays and general holidays, the approval of the worker is required, the worker cannot be forced to work on holiday. An employee who is forced to work may terminate an employment contract for the right reason. You can look at the example Supreme Court decision.
- Legal Department
Base Number: 2011/33689
Decision Number: 2013/25433
“Case Law Text”
Case: the plaintiff requested that severance pay, notice compensation, annual leave fee, overtime fee and national holiday and general holiday fee be paid. The Local Court has granted the request.
After hearing the report issued by the examination Judge for the case file, the file was examined, the need was discussed and considered.:
SUPERIOR COURT DECISION
- A) Summary Of The Plaintiff’s Request:
Belonging to the defendant by the plaintiff’s attorney filed the lawsuit the plaintiff’s employer in the shop of usage of starting to work on 8.10.2008, net of the monthly fee of $ 1,500. was dissolved on 13.9.2010 of employment contract by the employer that is wrongful, 10.00-22.00 hours, public holidays and national holidays, work, vacation days do not use their money to pay the wages overtime severance pay the charges by claiming that it failed with the collection of public holidays and national holidays from the defendant required.
- B) Summary Of Respondent’s Response:
September 22-24, the plaintiff did not come to work and the employment contract was terminated by him, he had no receivables, and the case was decried.
- C) Summary Of Local Court Decision:
The court has decided to accept the case.
- D) Appeal:
The defendant appealed the decision within his legal time.
- E) Justification:
1-according to the evidence collected in the articles in the file and the legal reasons on which the decision is based, the defendant’s Appeals, which are outside the scope of the following paragraphs, are not in place.
2-there is a dispute between the parties about the amount of monthly salary paid to the employee Dec. In the first paragraph of Article 32 of the Labor Law No. 4857, wages in general are defined as the amount provided to a person by the employer or third parties in exchange for a job and paid with money.
As a rule, the fee is a periodic (periodic) payment. It must be paid in accordance with certain and fixed-range time periods, periods determined by the parties under the contract within the limits agreed by the law. In the article of the law mentioned above, this period is maximum one month.
Parties to an employment contract may freely decide on the amount of wages within the framework of freedom of contract, provided that they are not below the minimum wage. The fact that the amount of salary is not clearly stated in the employment contract does not mean that there is no employment contract between the parties.Dec. Even in such a case, the fee must be determined according to the second paragraph of Article 323 of the Code of Obligations. The wage agreed upon in the employment contract in a case where the amount of the fee is not the personal characteristics of the worker in the workplace or on the job, seniority, job title, nature of Work, type of employment contract, the characteristics of the workplace, peer workers in the workplace or other establishments paid in fees is determined on the basis of Customs and traditions.
Code 8 article 4857 of the law requires the issuance of a document stating the working conditions, basic wages and decommissioning, if any, and the time of payment of wages to the worker within two months at the latest in cases where a written employment contract is not concluded between the employee and the employer. Article 37 of the same law states that in the case of payment of employee wages at work or deposit into a bank account, it is necessary to provide the employee with a document of the type of wage account Compass. Such documents, which are duly issued, are written evidence that is true from the employer at the point of the employee’s wage. Since the person cannot rely on his own muvaza, the claim that the document was issued at the request of the employee in muvaza form cannot be put forward by the employer. But whether such a matter is put forward or not, the case of muvazaa should be investigated by the court. (Supreme Court 9.HD. 23.9.2008 day 2007/27217 E, 2008/24515 K.). The fact that the unreality of the information contained in the working document is also sanctioned increases the proof power of the document. As a rule, the burden of proof on matters such as the amount of wages and code is on the worker. But at this point, it should also not be ignored that Articles 8 and 37 of law 4857 impose certain obligations on the employer in this regard.Dec. The mentioned rules help the parties to the employment contract to prove their obligations, as well as serve the purpose of preventing informality in working life. Although the issuance of a document in this direction is in favor of the employer in terms of proof, the fact that the document was not issued to the employee may damage the employee’s legal guarantees on wages, insurance, working conditions, etc. Issuing the work certificate and wage calculation compass to the employee will also provide important facilities in terms of determining the date of entry to work, wages, code of wages and working conditions, which mainly engage the work judgment. In this regard, during the evaluation of the evidence at the point of proof of wages, it is also necessary to investigate whether the employer has issued a document on this issue.From time to time, for the purpose of paying less taxes or insurance in working life, it seems that the wages shown in the employment contract or payrolls do not reflect the reality. In this case, determining the actual fee becomes important. The seniority of the worker, job title, his actual work, the wages paid to the workers of the workplace and peer characteristics are taken into account such considerations as when suspicion arises when a signed payroll wage does not reflect the truth about it, witness statements, and should be monitored for the time he spent in the profession of the worker, the workplace, work history, professional title and the actual work informed by trade unions, organizations of employers and workers concerned and investigated what would be the precedent of the fee after evaluating all of the evidence, a conclusion should go to.
Wage is not enough to research commissioned by the court in a concrete case, but in accordance with the principles above, plaintiff’s vocational seniority, job title, his actual work, the characteristics of the workplace issues such as wages paid to workers and peer yonteminc of the plaintiff’s wages while determining the level of review to investigate the establishment of an incomplete provision is wrong.3-there is a dispute between the parties as to whether the plaintiff worker is entitled to decriminalization compensation.
Although an employment contract is a private law contract that constantly burdens the parties with debt, it is possible for either party to terminate the relationship with a statement of Will directed to the opposite party to break the employment contract.
The right of termination is a right that gives the right to terminate the employment contract immediately or after a certain period of time, which gives rise to disruptive innovation and should be directed to the opposite party.Declarative termination, as set out in the article, refers to employment contracts for an indefinite period. In other words, the terminated party in certain-term employment contracts does not need to recognize the premise by notifying the other party. A notice of termination must be made clearly and clearly, since it has the nature of a right that gives rise to innovation and affects the legal field of the opposite party. Again, for the same reason, as a rule, the conditional termination notice does not apply.
The word “termination” is not required in the termination notice. If statements stating the will to terminate are combined with the state of non-active work, it should be accepted that this means termination. Sometimes termination can also occur in the form of a negative action by the employer. An example of this is the failure to hire an employee, the confiscation of an automatic pass card. In our department, if the employer unilaterally goes to the application of unpaid leave, it is considered as “termination of the employer” from the point of view of the employee who does not accept it.
Notification of termination in writing, Labor Law No. 4857 109. it is a result of its substance. But the written form requirement is not a condition of validity, but a condition of proof.As soon as the notice of termination reaches the opposite party, it has consequences. Attainment is the moment when the interlocutor enters the realm of dominance.
Notice compensation is a compensation that the party that terminates the employment contract for an indefinite period without justifiable reason and without properly recognizing the notification prefix must pay to the other party. Accordingly, first of all, if the employment contract has been terminated without the reasons written in articles 24 and 25 of the law and the notice has not been duly recognized as a pre-notice as specified in Article 17, compensation for the notice must be paid. Again, although there is a justified reason for termination, if the employee or employer goes on the path of termination after the period of reduction of the rights provided for in Article 26, the obligation to pay notice compensation to the opposite party arises. Notice compensation is a compensation that the party terminating the employment contract must pay to the other party, so the party terminating the employment contract cannot be entitled to notice compensation, even if the termination is based on a justifiable reason. In accordance with the provisions of Article 14 of the Law No. 1475, the employee does not have the right to claim notice compensation if he terminates the employment contract for reasons such as retirement, active military service, Marriage. In such termination, the employer cannot claim notice compensation. In a concrete case, the court has decided that the plaintiff is entitled to notice compensation, but this acceptance does not correspond to the content of the file. The witness testified that the defendant apparently Selver workplace employees and termination, the employer recruiting all workers before the holidays, holidays wanted to work on this, you couldn’t make it to the feast of the plaintiff, said that he will rest and left the office stated. As can be seen from the scope of the file, it is understood that the plaintiff left the workplace by not accepting the offer of the employer who asked him to work on the holiday. A worker cannot be forced to work on a general holiday. The plaintiff, who was forced to work on a general holiday, terminated the employment contract for the right reason. It is wrong to decide on the acceptance of the claim for notice compensation without regard to the fact that the party that terminated the employment contract, albeit for a justified reason, cannot claim notice compensation.
4-there is a dispute between the parties as to whether the plaintiff has overworked the worker.Dec. A worker who claims to have done too much work is obliged to prove this claim. The rules for payrolls also apply here. Payroll fraud with the signature of the employee is conclusive evidence until proven. In other words, if the forgery of the payroll is not suggested and proven, it is assumed that the excess work that appears on the signed payroll will be paid. As for proof of overwork, workplace records, especially documents showing entry and exit to the Workplace, internal correspondence in the workplace are evidence. However, if overwork cannot be proven by written documents, the parties must come to a conclusion with witness statements. In addition, some common cases known to everyone can also be considered at this point. According to the nature and intensity of the work that the worker actually does, it should be investigated whether there is too much work. In a concrete case, the plaintiff claimed that he worked between 10.00 and 22.00 hours every day of the week and worked 3 hours of overtime Dec. The defendant’s witnesses, who appear to have worked at the defendant’s workplace, declared that the plaintiff worked between 10.00 and 18.00 hours Dec. Both of the plaintiff’s witnesses said they were not employees at the workplace, but neighbors of the plaintiff. Considering that the defendant’s witnesses are employees of the workplace and are in a position to know the daily working time of the plaintiff, it is wrong to determine the excess working time without the evil eye that the plaintiff’s witnesses who are not employees of the workplace cannot know the daily working time of the plaintiff.
- F) conclusion:it was unanimously decided on 08.10.2013 to overturn the Appeal decision due to the reasons written above, to return the appeal fee received in advance to the interested party on request