T.C. SUPREME COURT 22. Law Department Article No:2015/16933
Decision No:2017/19050
Date of Decision: 25.09.2017
The Decision of the Supreme Court
TRIBUNAL: Employment Tribunal
CASE TYPE: RECEIVABLE
Examination of the decision made as a result of the lawsuit between the parties on appeal by the dectiff’s deputy
as requested by the court, it became clear that the appeal request was in due course. The Examining Judge for the case file …
after listening to the report edited by, the file was reviewed, discussed and considered as necessary:
Y A R G I T A Y K A R A R I
Summary of the Plaintiff’s Request:
Deputy plaintiff; his client works as a branch sales manager at the defendant’s workplace, working hours
although it is 09:00-18:00, you can come to the workplace at 08:00-08:30 until 20:30 and later
that she was working, that she was not paid overtime, and that her maternity leave was paid by her employer during the period she gave birth
although it is dec dinner time between 12:30 and 13:30, it is determined that it is dec 12:00-14:30, except for 3 or 4 times
do not overwork by stating that you cannot use the milk leave due to customer appointments and company meetings
he requested that the defendant decide on the collection of the fee and the milk leave fee.
Summary of the Defendant’s Defense:
The defendant’s deputy; that the plaintiff works with a salary plus a premium, that overwork is included in his remuneration, 3 months
she has been using her milk leave for 9 months other than maternity leave, in case she is not used, her fee will be paid
therefore, the absence of regulations has asked for a dismissal.
Summary of the Court Decision:
According to the court, the plaintiff’s working hours are determined by him and limited to 270 hours
that overwork should be accepted within the wage, the plaintiff’s salary + bonus should be accepted according to the working procedure
according to the results of his and her work, he also receives variable premiums from the employer, exceeding 270 hours
any documents or statements reflected in the file that it is working cannot be identified, as well as
although the plaintiff declared that the worker could not use the milk permit and demanded payment for it, the Supreme Court 9. Law
His apartment is dated 01/02/2012,
according to the decree No. 2010/33549-2012/2569, in case of non-issuance of a milk permit, an additional
there is no rule in the labor code that a fee will be paid, its sanction is provided in Article 104 of the Labor Code.
according to the article, the issue of imposing a fine on the employer is regulated, so the plaintiff
even if the milk permit has not been used, the lawsuit may not charge a fee in return
it has been decided to refuse.
Appeal:
The decision was appealed by the deputy plaintiff.
Reason:
1-According to the articles in the file, the evidence collected and the legal reasons on which the decision is based,
the plaintiff’s appeals that fall outside the scope of the following paragraph are not in place.
2-A dispute between the parties on the point of whether the plaintiff is entitled to receive a milk permit Dec whether the plaintiff is entitled to
is available.
74/7 of the Labor Code No. 4857. in the article “For female workers to breastfeed their children under the age of one year
a total of one and a half hours of milk per day is allowed for. By dividing the time between which this period is decoupled and by how much
the worker himself determines which one will be used. This period is counted from the daily working time. editing by ”
is available.
104 of law No. 4857. contrary to the provision of this article on the regulation of work of the employer in the article
a fine will be imposed if he acts by introducing a milk permit
its use has been secured by binding an administrative sanction.
As for the milk permit, from our previous opinion, our apartment is 13.06.2016 tr 2015/12878 Tr 2016/17527
Decision No. 69/3 of the Labor Code No. 4857 ” on its decision no. in the paragraph “Night work of workers sevedibucuk
it may not exceed an hour, according to the provision that night work will be paid at an increased wage
although there is no legal regulation, this situation is clarified by the established case law of our apartment
it has been clarified and it is accepted that overwork done at night should be paid at an increased rate
has been carried out. It is also fair to comment similarly on the milk permit and … and the Law
it has been evaluated that it is more suitable for the purpose of the legislator.
In the mentioned decision, exactly;
“According to the law, women workers are given 1.5 hours a day to breastfeed their children (in the opposite direction and but the worker
as long as the time can be arranged between the parties in favor dec the issue of granting a milk permit
it is not a situation that is on the initiative of the employer, but 74/7 of the Labor Code No. 4857. according to the paragraph, this is also
the provision that the duration will be determined by the worker between which hours and divided by how dec
if the worker is required to use a milk permit, but this permit is not used,
determination of the period not used and calculation of the 50% increase fee should be made
adoption of Article 50/2 of the Constitution. by adopting the article and the objective interpretation of 4857
it has been decided that the provision will be overturned on the grounds that it will be more appropriate to the spirit of law No. 1”.
In a concrete dispute, the period during which the plaintiff cannot use the milk permit is determined and the fee is increased by 50%
when the calculation had to be made, the refusal of the request with a written justification was invalid and required distortion.
Result:
If the appealed decision is OVERTURNED for the reasons written above, the appeal fee received in advance
if requested, the extradition to the relevant person was decided unanimously on 25/09/2017.
