T.C.
SUPREME
- law office
BASE NO: 2015/16933
DECISION NO: 2017/19050
DATE OF DECISION: 25.9.2017
IF THE FEMALE WORKER WHO GIVES BIRTH IS NOT GIVEN “MILK LEAVE”, SHE CAN ASK FOR A 50% INCREASE IN THE MILK LEAVE FEE
It became clear that the decision made as a result of the lawsuit between the parties was requested by the deputy plaintiff to examine the appeal process, and the appeal request was within the period of dec. After hearing the report prepared by the Examining Judge for the case file, the file was examined, discussed and considered as necessary:
decision
Attorney for plaintiff; the defendant’s branch in the workplace working as a sales manager, your client, business hours 09:00-18:00, although it is 08:00-08:30 come to workplace to 20:30 and worked late hours, overtime work is paid for, whether or also during his period of birth, milk for the permission of the employer 12:30-13:30, despite the lunch hour, 12:00-14:30, it was determined that 3 or 4 times due to corporate meetings and appointments outside the customer by specifying whether to use milk and dairy permission permit fee costs from the defendant further work is asked to decide on the collection.
The defendant’s deputy requested that the plaintiff work with a salary plus a premium, that overwork is included in his salary, that he uses 9 months of maternity leave other than 3 months of maternity leave, that there is no regulation that his fee will be paid if he is not used, for this reason, he asked for the rejection of the case.
The court itself is determined by the plaintiff’s working hours 270 hours and more work should be recognized is limited to the cost of the plaintiff’s salary + bonus structure, according to his work and the results of his work, according to variable premiums received from the employer, in excess of 270 hours of work that it is doing to the file not being able to identify any document or statement that is reflected, also a plaintiff workers ‘ milk with the statement that can’t consent to this fee, if requested, is still in the Supreme Court 9. According to the decree No. 2010/33549-2012/2569 of the Law Department dated 01/02/2012, there is no rule in the labor code that an additional fee will be paid to the employee if the milk permit is not granted, his sanction is 104 of the Labor Code. it was decided to dismiss the case on the grounds that the provision of a fine to the employer was regulated in the article, therefore, even if the plaintiff’s milk permit was not used, he could not charge a fee in return.
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 valid.
2- ) There is a dispute between the parties on the dec of whether the plaintiff is entitled to receive a milk permit.
74/7 of the Labor Code No. 4857. in the article “Female workers are allowed a total of one and a half hours of milk per day to breastfeed their children under the age of one. The worker himself determines which hours this period will be used between and divided by how dec. This period is counted from the daily working time.” there is an arrangement in the form.
Article 104 of the Law No. 4857. in its article, the regulation is also introduced that a fine will be imposed if the employer acts contrary to the provision of this article on the regulation of work, and the use of milk leave is secured by binding an administrative sanction.
As for the milk permit, from our previous opinion, our Department’s decision No. 13.06.2016 en 2015/12878 on the basis of Decision No. 2016/17527 ” 69/3 of the Labor Code No. 4857. in the paragraph “Night work of workers cannot exceed seven and a half hours, according to the provision that there is no legal regulation that night work will be paid at an increased wage, but this has been clarified by the established case law of our Apartment, and it has been agreed that overtime work done at night should be paid at an increased wage. It has been evaluated that a similar comment on the milk permit is more appropriate for fairness and the purpose of the legislator.
In the mentioned decision, exactly;
“In accordance with the law, the issue of granting women workers 1.5 hours a day to breastfeed their children (as well as time dec between the parties can be arranged in the opposite direction and but in favor of the employee) is not a situation that is at the initiative of the employer, but 74/7 of the Labor Code 4857. in accordance with paragraph 1 of the Constitution, 50/2 of the Constitution decides that the calculation of the 50% increase in wages should be made by determining the period not used if the worker should use milk leave but this leave should not be used. it was decided to violate the provision on the grounds that it would be more appropriate to the spirit of law No. 4857 ”by adopting its article and objective interpretation.
In a concrete dispute, the period during which the plaintiff could not use the milk permit was determined and a calculation should be made on the 50% increase fee, while the rejection of the request with a written justification was incorrect and required to be overturned.
CONCLUSION: It was decided unanimously on 25.09.2017 that the appealed decision should be OVERTURNED for the reasons written above, and that the appeal fee received in advance should be returned to the relevant person if requested.
T.C.
SUPREME
- law office
MAINLY NO: 2017/4543
DECISION NO: 2017/7375
DATE OF DECISION: 27.4.2017
The plaintiff requested that the severance pay, notice compensation, national holiday and general holiday pay, leave pay, overtime pay, Eve work pay and milk leave pay be decided with the payment of the wage receivables.
The local court has decided to partially accept the case.
Although the parties were appealed by their lawyers during the sentencing period, after hearing the report prepared by the Examining Judge for the case file, the file was examined, discussed and considered as necessary:
decision
The deputy plaintiff informed the plaintiff that the plaintiff worked at the defendant’s workplace as a Human Resources Education Officer from 01/05/2008 until the date of termination of the employment contract, that the employer terminated the plaintiff’s employment contract on 15/04/2013 in accordance with Article 18 of the Law, the plaintiff was signed without even receiving the defense of the termination form, the plaintiff’s notice and payment of his rights discovered on 16/04/2013 from the employer whatever you want, instead of paying for these rights, the employer should issue a notice of absence against the plaintiff, informing him of his excuse for absence, otherwise the employment contract will be terminated in accordance with Article 25 of the Labor Code, he was warned that the net wage he received last was $ 2,415.00. that is, if you have been granted permissions on the annual, in the morning at 07:45 from 23:30 until working more working paying fees, whether they are national holidays, public holidays and Eve, in the afternoon, on paying the costs of working, whether it is the plaintiff who gave birth during the study period, milk was paid a fee for permission to use this work that was blocked by the employer stating that the notice and severance pay, paid annual leave, overtime, holiday work, and a permit fee of milk from the defendant is asked to decide on the collection of receivables.
Counsel for the defendant, the plaintiff’s termination of employment by the company has been any work of her own volition that the rescission of a contract with the health problems based on the medical records taken from 15/04/2013 is expected to start on it when I searched that fact that you can’t work due to the traffic that is not a justification reported due to the absence of the minutes held on 16/04/2013 the plaintiff came to work for reasons of Health reported that the output process is performed at the time I was asked this statement to be taken as written, that he left the workplace by refraining from making a statement, that no exit was made in order to avoid loss of rights, that the plaintiff was notified and requested to report or explain the rightful grounds, that the plaintiff terminated his employment contract on 16/04/2013 on the same day, that he discovered the warning, … 13 Notary’s notice numbered 12459 evmiye was notified on 18/04/2013, on 26/04/2013, the answer of Beyoğlu 35 Notary’s Office, which was discovered, was that the warning was discovered, whether it is due to be entitled to compensation for the withdrawal of your employment, the termination occurs if the right conditions, annual leave is used, the working conditions that have not been altered, whether the aggravated conditions, colleagues claim that terms and conditions have been made in similar improvements in the way that the permissions were denominated in milk, more if study personnel attendance records that are incompatible with the claims of the claimant from time to time and which correspond to the first year in question, or let the overtime was paid for itself as the return of material, he argued that the case should be dismissed.
At the end of the trial conducted by the court, it is stated that the date of the plaintiff’s dismissal is 15/04/2013 and the reason for his dismissal is 18 of the Law No. 4857.item as written, the name and signature of Human Resources approval of your employment by the plaintiff on notice of the dissolution of the later 16/04/2013 because it is not effective where the result of employment by the employer terminated on 15/04/2013, the permissions are entitled to annual leave severance pay when they use 6 of the convention business. in the article noted that more work is included in the cost of Personnel Records and records of input and output are presented where more work, a written document for the claim of the plaintiff that he did not calculating overtime work in excess of 270 hours per year in the absence of the plaintiff, however, according to the records, working on general holidays, 857 wholesale on a fee basis in law or edit permissions will be given milk that would not be paid, for this reason, since it is not possible to cover it as a fee, it was decided to collect severance and notice payments and vacation pay, refuse leave, overtime and milk leave by partially accepting the case on the grounds that the plaintiff does not have a milk leave allowance.
The decision was appealed by the deputies of the parties.
Reason:
- According to the articles in the file, the evidence collected and the legal reasons on which the decision is based, all of the defendant’s and plaintiff’s appeals are out of place except for the scope of the following paragraph.
- Article 74 of the Law No. 4857.according to the article, women workers are allowed 1.5 hours of milk per day to breastfeed their children under the age of 1 year. The worker himself determines which hours this period will be used between. dec. This period is counted from the daily working time. A worker cannot request mass use by collecting a milk permit. The sanction of not being allowed milk by the employer is also referred to as an administrative fine in Article 104 of the Law. it is stipulated in the article. It should be noted that a behavior that is connected with a criminal sanction must also have a legal sanction.
Milk leave is an excuse leave arising from the law and is a legal right. As a rule, there is also a fee. However, it has the ability not to be delayed and cannot be used later. For this reason, it must be requested by the worker to be used at the moment of its birth. Although wages are not provided for in exchange for milk leave, a civil sanction, such as a criminal sanction, must also be attached if it is not provided to the employee.
If the worker has worked at a time of 1.5 hours per day with milk leave, since he works overtime for it, it should be considered overtime and the wage for overtime should be calculated and ruled out.
In the concrete dispute, the plaintiff claimed that postpartum milk leave was not used, and the defendant argued that wholesale milk leave was used for five days. Firstly, milk leave should be determined, deducted from the date of birth of the plaintiff, the date of birth of the child until the age of one year, a total of 1.5 hours per day that the plaintiff should use, except for the days of birth and other days off, should be given, the remaining part should be calculated as overtime pay on the date when it should be used, and the provision for milk leave should be ruled out, while the rejection of this receivable is erroneous on written grounds.
- The claimant’s last remaining 15 days off fee is TL 1,830.66. it has been accepted that the receivable has been accrued and paid with the payroll dated 30.04.2013. But the payroll is unsigned. Bank records have been submitted until 15.04.2013. It is incorrect to decide on the rejection of this loan without determining whether the permission is paid by the bank or not.
CONCLUSION: It was decided unanimously on 27.04.2017 that the appealed decision should be OVERTURNED for the reasons written above, and that the appeal fee received in advance should be returned to the relevant person if requested.
