T.C.
Supreme
- law office
Base No:2014/22935
Decision No:2015/33774
K. Date:30.11.2015
THE DECISION OF THE SUPREME COURT
A) Summary of the Plaintiff’s Request:
The plaintiff, claiming that the employment contract was terminated unfairly by the employer while working as a drilling machine operator at the defendant’s workplace, and that some of the payments were missing, requested notice compensation, and in the merged case, he requested that he would receive severance pay.
B) Summary of Respondent’s Response:
The defendant asked for the dismissal of the case, arguing that the claimant had been paid the severance and notice compensation he deserved upon the termination of his employment.
C) Summary of the Decision of the Local Court:
Based on the evidence collected by the court and the expert report, the court decided to accept the case on the grounds that the plaintiff is entitled to severance pay and notice compensation for the fact that the defendant’s employer’s payment was incomplete after the termination.
D) Appeal:
The defendant appealed the decision.
E) Justification:
1- According to the evidence collected from the articles in the file and the legal reasons on which the decision is based, the defendant’s appeals that fall outside the scope of the following paragraph are not valid.
2- There is a dispute between the parties on the point of remuneration, which should be taken into account in the severance pay account. Dec.
The wage that will be based on the severance pay account is the final wage of the employee. In other words, it is the wage that is valid at the time of termination of the employment contract. Since the termination takes place on the date of termination of the pre-notice, the fee must be based on the date of termination of the pre-notice. If the notice is terminated by the employer without prior recognition and without notice compensation (in full), the employee whose employment contract has been terminated must also benefit from the pay increase implemented at the workplace by the end of the notice period and compensation must be calculated based on this increased pay.
The wage that must be taken into account in the severance pay account is the gross wage of the employee. In that case, severance pay is calculated taking into account the gross wage, which is determined not on the actual wage of the employee, but without deductions such as insurance premiums, tax union dues, etc.
The monthly wage based on compensation should be determined by multiplying the hourly wage first by seven and a half, and then by thirty. On the contrary, it would not be correct to calculate the determination of the monthly wage based on the number of days the employee actually works.
The concept of the last wage refers to the last wage for which the employee receives work within the scope of the employment relationship and is entitled to the wage. If the employment relationship is suspended and the employment contract is terminated within the suspension period, the wage that should be taken into account in the severance pay account should be the last wage that is entitled to before the suspension of the employment contract.
Our Department has stabilized its decisions on adding up to four months to the length of service during the trial of the case for return to work (Supreme Court 9.HD. 3.10.2005 day 2005/16932 E, 2005/31926 K.). Again, in our apartment, the date when the employee is announced that he will not be hired or the end of the one-month start period is considered the date of termination. For this reason, the severance pay ceiling at the date of termination must be observed. In the same way, the fee to be based on compensation must be the fee on the date of termination in accordance with the provision of Article 14 of Law No. 1475.
In determining the remuneration that will be based on severance pay, in addition to the actual salary mentioned in October 32 of the Labor Code No. 4857, the benefits that can be measured with the money or money provided to the employee are taken into account. Accordingly, bonuses, bonuses that provide continuity, firewood assistance, clothing assistance, rent, lighting, service assistance, food assistance and similar payments are taken into account in the severance pay account. Private health insurance assistance or life insurance contributions provided to the employee are also included in the concept of benefits that can be measured in money, and must be added to the basic pay for compensation. Although the piri calculated according to sales figures or other data varies, it should be evaluated within the concept of an extended fee in the severance account.
It is not taken into account that the worker will receive a protective suit provided, towels provided for use at work, soap assistance, incidental overtime, national holiday, general holiday, week break.
In practice, it is seen that payments are made under the name of road premium according to the distance traveled for heavy vehicles and especially for truck drivers. For the most part, a flat fee is paid at the minimum wage level, and the main part of the fee is provided with the specified premiums. It is impossible to accept that a truck driver traveling abroad works only with a minimum wage. In this respect, payments made under the name of road premium should also be taken into account when determining the main fee for compensation. The decisions of our department are rooted in this direction. (Supreme Court 9.HD. 7.2.2005 day 2005/950 E, 2005/3328 K.)
In the decisions of our department, it is accepted that the amount that falls on a day will be determined by dividing the total of payments made in the last year by 365 in reflecting the benefits that can be measured in money or money other than wages in compensation (9.HD. 29.9.2005 day 2005/342 E, 2005/31714 K., Supreme Court 9.H.D. 12.4.1999 day 1999/5910 E, 1999/7119 K.). In terms of monetary rights that do not have a periodic nature, it is necessary to determine the amount that falls on one day by dividing the payments made during the year by 365 days. For example, the time (road) premium that a truck driver receives during the year may vary constantly, and it may be difficult to base a certain period on the calculation. On the other hand, it is unlikely to say that the allowance paid to the worker twice a year on religious holidays is made for a certain period. Here it would be appropriate to divide the annual pay amount by the figure 365. Finally, it should be noted that it is indisputable that monetary benefits (such as firewood assistance) made once a year will be reflected in the compensation based on the fee and will be realized by dividing the annual amount by 365.
In terms of monetary rights paid regularly and at certain periods during the year, severance pay must be calculated according to the final fee. Since severance pay is calculated based on the employee’s final salary and the average wages that have increased during the year have not been taken, a similar solution should be sought in terms of wage October. For example, if the three bonuses received by the employee during the year are less than the old salary, and the last bonus is paid over the last wage of the employee, the bonus that should be taken into account when determining the main wage for compensation should also be this last bonus. It is also fair that the calculation is made by dividing the last slice by the number of days in the period to which the bonus belongs. In more concrete terms, in the event that there are four bonus payouts per year, each bonus is applied for a period of 3 months. By dividing the increased bonus of the employee by the ninety days to which it belongs, the presence of the amount of bonuses falling within one day will be more consistent with the legal rule that severance pay will be calculated from the final wage. It is also possible to make the same application for payments such as road and food assistance. The amount that falls on a day should be determined by dividing the portion of such payments paid for the last month that is assumed to be made to the employee on a monthly basis by the actual number of days worked. Accordingly, the amount that will be reflected in the compensation base fee will be determined more accurately by dividing the final period payment by the tranche days to which it belongs in terms of monetary rights that are paid periodically and payable during the year. The decisions of our department are also in this direction (Supreme Court 10.10. 2008 day 2007/27615 E, 2008/26209 K.).
In a concrete case, in the expert report based on the judgment, when calculating the plaintiff’s compensation-based fee, the monthly average of payments made in the last year in bonuses and firewood pay, which is understood to be regularly paid by the employer to the plaintiff, should be taken into account, while taking into account the amounts on the plaintiff’s last payroll at work was incorrect and required a breakdown.
F) The result:
It was unanimously decided on 30/11/2015 that the appealed decision should be OVERTURNED for the reason written above, and that the appeal fee received in advance should be returned to the relevant person upon request.
