- Law Office
Base Number: 2011/33689
Decision Number: 2013/25433
“Justice Text”
COURT:COURT OF LABOR
CASE: The Plaintiff requests a decision to be paid for the seniority district, notice, annual leave period, overtime, and holiday and general holiday expenses. The local court has its lovers.
While it was created by the defendant’s lawyer during the sentence, the Investigative Judge for the case file …
Y A R G I T A Y A R A R I
A) Summary of Plaintiff’s Request:
The plaintiff’s attorney meets with the plaintiff’s lawyer and the defendant’s lawyer in the application to the defendant lawyer. According to the research carried out on 8.10.2008, the net fee was 1.500 TL, by the lawyer of the employment contract, by the way, by the way, by the way, by the way, from the elections between 13.9.2010, in the elections between 10.00-22.00, during the holidays and general holidays. Evaluating the applications from the defendant for the assertive seniority and evaluations of the students who do not use their annual leave and the salaries are not paid, as well as the overtime and general holiday holidays in the elections in the elections.
B) Summary of Respondent’s Response:
The defendant employer’s representative primarily benefits from the statute of limitations voter, the choice of too many applications at the workplace, the minimum wage of the case, the request to be taken from the rejected decision of the application, which was rejected by the employment contract of the target from September 22 work, and was chosen by the representative of the job before he arrived.
C) Summary of Local Court Decision:
The court decided to accept the case.
D) Appeal:
Throughout the defendant’s line of decision.
E) Reason:
1- Just as there are demonstrations outside the scope of the subparagraphs on which the defendant is based, according to the legally compelling reasons, which are decided by the evidence gathered from the articles in the file.
2- The parties are in daily use daily to daily use. For the 32nd go crazy in Job site 4857, pay in general terms will be considered by the user for a job and with money as the target.
As a rule, the fee is a periodic (periodic) payment. It must be paid in accordance with certain and fixed intervals, periods determined by inclusion within acceptable limits. This period for reflection shall be referred to as one month at the latest.
The parties within the scope of the work may decide to be charged without being charged, provided that they do not remain paid. It will not be charged in the employment contract, and it will not be expected to have business intentions between the goings-on. In the case of a genius charges, 323 third Borrower should be seen in such a reading. In cases where wages are not determined in the employment contract, the amount of the wage, the personal characteristics of the worker, the seniority in the profession at the workplace, the professional, the selected persons, the type of work, the preferences of the candidate, the targeted wages in that application to the precedent or in other persons, the persons sought by looking for favorites.
It is certain that a document stating the basic wage and, if any, the time of payment, will not be definitively approved in cases that will be done to the employer within two months at the latest, such as the 8th of the law numbered 4857. 37th designers, in the case of payment of flight fares or payment from the bank, the calculation of the fare is also attributed to the prediction of the delivery of a document. What is legal is the evidence that writes such documents from the lawyers of their prices. Since the person cannot rely on his own collusion, the employer cannot put forward the claim of production for the colluded workers of the document. However, whether such an issue is developed or not, a collusion investigation should be made. (Court of Appeals 9th HD. 23.9.2008 day 2007/27217 M, 2008/24515 K.). In the case of a processing that is not genuine that is not included in the document, attempts to develop a working document of the document. As a rule, the same months as the amount of the wage and its supplements are with the worker. However, in this regard, it should not be accepted by the person numbered 4857. They are the people who serve the purpose of informality in the study, as well as to introduce the parties of the aforementioned days and their business. While this document is designed to be sampled for approval, the unprojected creation of the document can complete the order’s projects related to sampling, primi, working and sample projects. Arranging the wages with the employment certificate, to manage the labor jurisdiction, the date of employment, the wage, the annexes of the wage and
It will also provide important conveniences in terms of determining working conditions. In this respect, during the evaluation of the evidence at the point of proof of wage, it should be investigated whether the employer has prepared a document on this subject. In this case, the determination of the real wage becomes important. Considering the employee’s seniority, job title, actual job, characteristics of the workplace and the wages paid to peer workers, when there is a suspicion that the wage in the signed payroll does not reflect the truth, witness statements should be taken into consideration and the time spent by the worker in the profession, the dates he worked in the workplace, the job title and By declaring his actual job, it should be investigated what the precedent wage might be from the unions, the relevant workers’ and employers’ organizations, and a conclusion should be reached by evaluating all the evidence together.
In the concrete case, the wage research made by the court is not sufficient, and in line with the above principles, the plaintiff’s wage level should be determined by investigating the matters such as the plaintiff’s professional seniority, job title, actual job, the characteristics of the workplace and the wages paid to the peer workers. There is a dispute as to whether the worker is entitled to notice compensation.
Although the employment contract is a private law contract that constantly imposes debts on the parties, it is possible for any of the parties to terminate the relationship with a declaration of intent directed to the other party in order to break the employment contract.
The right of termination is a right that gives rise to a disruptive innovation that gives the right to terminate the employment contract immediately or after a certain period of time, and should be directed to the other party. In other words, in fixed-term employment contracts, the terminating party does not need to give notice to the other party. The notice of termination should be made clearly and distinctly, as it is a right that creates a novelty and affects the legal field of the other party. For the same reason, as a rule, a conditional termination notice is not valid.
The notice of termination need not include the word “termination”. It should be accepted that if the statements revealing the will to terminate are combined with the act of not continuing to work, this means termination. Sometimes termination can also occur in the form of a negative action by the employer. Non-employment of the worker, confiscation of the automatic pass card can be given as an example. According to our office, if the employer unilaterally takes unpaid leave, it is considered as “termination of the employer” for the employee who does not accept it.
Written notice of termination is a consequence of Article 109 of the Labor Law No. 4857. However, the written form requirement is not a validity condition but a proof requirement. The notice of termination has its consequences as soon as it reaches the other party. Reaching is the moment when the addressee enters the domain of dominance.
Notice indemnity is an indemnity that must be paid to the other party by the party that terminates the indefinite-term employment contract without just cause and without proper notice. Accordingly, first of all, if the employment contract is terminated without the reasons stated in Articles 24 and 25 of the Law and the notice indemnity has not been duly recognized as specified in Article 17, notice indemnity should be paid. Again, although there is a just cause for termination, if the employee or the employer resorts to termination after the expiry of the period of disqualification stipulated in Article 26, the obligation to pay notice indemnity to the other party arises. Since notice indemnity is an indemnity to be paid by the party who terminates the employment contract to the other party, even if the termination of the employment contract is based on a just cause, it is not possible for the party to be entitled to notice indemnity. In the event that the worker terminates the employment contract for reasons such as retirement, active military service, marriage, etc., pursuant to the provisions of Article 14 of the Law No. 1475, there is no right to demand notice indemnity. In the aforementioned terminations, the employer cannot demand notice indemnity. In the concrete case, although the court has decided that the plaintiff is entitled to notice compensation, this acceptance does not comply with the content of the file. The defendant’s witness, Selver, who is a workplace employee and who is understood to have witnessed the termination, stated that the employer gathered all the workers before the holiday, wanted them to work during the holiday as well, then the plaintiff said that he could not come to work during the holiday, that he would rest, and left the workplace. As it is understood from the scope of the file, it is understood that the plaintiff left the workplace by not accepting the offer of the employer who wanted him to work during the holiday. The worker cannot be compelled to work on the general holiday. The plaintiff, who was forced to work on public holidays, terminated his employment contract with just cause. The party who terminates the employment contract for just cause
It is wrong to decide to accept the notice compensation request without considering that the applicant cannot demand notice compensation.
4- There is a dispute between the parties as to whether the claimant worker has worked overtime.
The worker who claims to have worked overtime is obliged to prove this claim. The rules regarding payrolls also apply here. The payroll bearing the signature of the worker is in the nature of definitive evidence until its falsity is proven. In other words, it is assumed that the overtime claim that appears on the signed payroll has been paid, unless the forgery of the payroll is claimed and proven. The workplace records, especially the documents showing the entrance and exit of the workplace, and internal correspondence of the workplace are in the nature of evidence for the proof of overtime work. However, in case the overtime work cannot be proven with written documents, it is necessary to reach a conclusion with the witness statements of the parties. Apart from this, some general facts that are known to everyone can also be taken into account at this point. It should be investigated whether there is overtime work according to the nature and intensity of the work actually done by the worker. In the concrete case, the plaintiff claimed that he worked between 10:00 and 22:00 every day of the week, and that he worked overtime for 3 hours a day. The defendant witnesses, who were understood to be working at the defendant’s workplace, stated that the plaintiff worked between 10:00 and 18:00. Both of the plaintiff’s witnesses said that they were not employees of the workplace but were neighbors of the plaintiff. Considering that the defendant’s witnesses are workplace employees and they are in a position to know the daily working time of the plaintiff, it is necessary to determine the overtime hours based on their statements, but it is wrong to determine the overtime hours without taking into account that the plaintiff’s witnesses who are not workplace employees cannot know the plaintiff’s daily working hours.
F) Result: It was unanimously decided on 08.10.2013 that the appealed decision be overturned due to the reasons stated above, and that the appeal fee paid in advance be returned to the relevant party upon request.
