22nd Civil Chamber of the Supreme Court
Base Number: 2012/3328
Decision Number: 2012/8399
“Justice Text”
COURT: İzmir 9th Labor Court
DATE: 13/02/2012
NUMBER: 2011/556-2012/76
The plaintiff claimed that he worked at the defendant’s workplace between 06.05.2005 and 13.05.2011, and that the employment contract was unfairly terminated by the employer on the grounds of absenteeism, and demanded the collection of severance and notice indemnities and some labor receivables.
The defendant requested the dismissal of the lawsuit, arguing that the plaintiff left the workplace on 08.06.2011 by arguing with other workers working at the workplace, that he did not continue to work without a valid excuse in the following days, and that the employment contract was terminated based on the justified reason for absenteeism.
Based on the evidence gathered and the expert report, the court decided to partially accept the case on the grounds that the defendant was wrong to terminate the employment contract.
The defendant appealed the decision.
1-According to the articles in the file, the collected evidence and the legally compelling reasons on which the decision is based, the defendant’s appeals outside the scope of the paragraph below are not valid.
2- There is a disagreement between the parties as to whether the plaintiff 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, unless the fraudulent payroll is claimed and proven, it is assumed that the overtime receivable appearing on the signed payroll has been paid.
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, if the overtime work cannot be proven with written documents, the parties must come to a conclusion with the statements of witnesses. 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.
If it is understood that overtime wages are paid on the signed payrolls, it is not possible to claim that the worker actually did more work. However, if there is a reservation that the worker has more overtime receivables, the proof of working more than what appears on the payroll can be made with any kind of evidence. In case the payrolls are signed and unregistered with reservations, the worker must prove with a written document that he worked more than the payroll. In the event that the employee is paid different amounts of wages each month, including the overtime wage accruals, through the bank, although the payroll is not signed, the reservation has not been put forward, it is more than the paid amount. It leads to the conclusion that overwork should be proved with written evidence.
In the concrete case, it is seen that overtime wages were accrued in the signed payrolls submitted 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 bank account of the plaintiff and paid without reservation. Although it is stated in the explanation section of the expert report based on the provision that these accrued months should be excluded from the calculation, it is seen that the mentioned period is not excluded when the calculation is made. The establishment of a judgment based on an erroneous expert report necessitated reversal.
3- The other dispute between the parties is whether the worker is entitled to the wages of the unused leave periods.
In Article 59 of the Law No. 4857, it is stipulated that if the employment contract is terminated for any reason, the wages of the annual leave periods not given to the employee will be paid over the last wage. The termination of the employment contract is a must for the annual leave right to be turned into a wage. At this point, the way the contract is terminated and whether it is based on a just cause does not matter.
The burden of proof at the point where the annual leave is used rests with the employer. The employer must prove that the annual leaves are used with a signed leave book or an equivalent document. The employer, who has the burden of proof in this regard, may offer an oath to the worker.
In the concrete case, there are signatures in the annual leave book submitted by the defendant, stating that the plaintiff used the forty-two-day annual leave that he was entitled to according to his working period. The content of the minutes of the warning penalties given to the plaintiff before the termination by the employer, who is illiterate, is also fixed. Since the conditions stipulated in Article 206 of the Code of Civil Procedure No. 6100 were not met, the court accepted that the signatures of the plaintiff in the annual leave book could not be considered valid, and the annual leave fee was awarded over a period of forty-two days.
Witness Oruç Budanır, wife of the plaintiff, declared that the plaintiff took fifteen days of annual leave during his working period. Plaintiff,
Although the defendant stated in his statement regarding the evidence submitted by the employer that the signatures on the payrolls did not belong to him, he did not claim that the signatures in the annual leave book did not belong to him and did not bring a defense that they were taken from him by fraud.
The rule stipulated by Article 206 of the Law No. 6100 regarding the arrangement and conditions of sealed, fingerprinted and marked documents is not a form of validity, but is related to the form of proof. In this respect, this form of regulation stipulated in the aforementioned article is only valid if the fingerprint or special mark of the seal is denied; In this regard, if the fingerprint is acknowledged, the fingerprinted document is considered valid even if it is not approved in accordance with Article 206 of the Procedure. Signing or marking a document without reading it should be accepted as a valid document in terms of trust principle. Because, even if he has no knowledge of its content, the person who signed or fingerprinted a document knowing this situation cannot claim that the document is invalid afterwards. In the face of this situation and considering the material and legal facts explained above, it is wrong to decide that the case should be accepted while it should be rejected in terms of annual leave fee.
CONCLUSION: It was unanimously decided on 02.05.2012 that the appealed decision should be quashed due to the above-mentioned reason, and that the appeal fee paid in advance be returned to the relevant person upon request.
