T.C
SUPREME
- law office
BASE NO: 2015/26859
DECISION NO: 2018/84
DATE OF DECISION: 15.01.2018
SEVERANCE PAY, OVERTIME PAY, ANNUAL LEAVE FEE AND THE MANNER OF TERMINATION OF THE EMPLOYMENT RELATIONSHIP AT THE REQUEST OF NATIONAL HOLIDAY AND GENERAL HOLIDAY PAY RECIPIENTS – LEAVE CANNOT BE USED IN EXCHANGE FOR WORK DONE ON NATIONAL HOLIDAY AND GENERAL HOLIDAYS
SUMMARY: The plaintiff has resigned conditionally, stating the reason. He has retirement conditions, except for age, on the date of termination, as he put forward health reasons in his resignation petition. Therefore, it is necessary to take into account the provision of differential severance pay. Presented by the defendant and the plaintiff and the defendant belong with the signature of documents belonging to the year of 2008 and 2009 by 2010 and 2013, national holidays and public holiday work has not been submitted as a document that you have permission for the document will be invalid even if they submit that, for the years 2010 and 2013, national holidays and public holidays will receive calculated that under the provision must be taken. In the Labor Code, free time is provided for overtime work. If the employee has worked on holidays, the fee must be paid for this. The fact that a leave of absence is granted in exchange for this post-study does not indicate that you will not be eligible for vacation pay. Because it is not in accordance with the law to give free time or permission for vacation work.
The plaintiff requested that a decision be made on the payment of overtime pay, annual leave pay and national holiday and general holiday pay receivables with severance pay.
The Local Court has decided to partially accept the case.
Although the parties have been appealed by their lawyers during the period of conviction, a hearing has been requested by the defendant’s lawyer; HUMK.after the decision was made to reject the request for a hearing from the amount in accordance with Article 438 of the nun and to conduct the examination on the documents, a report prepared by the Examining Judge was submitted, the file was examined, and the need was discussed and considered:
THE DECISION OF THE SUPREME COURT
The plaintiff’s deputy stated that his client worked as a master dec in the defendant employer’s workplace between 01/09/1995 and 20/09/2013, and finally as a measurement and evaluation officer, most recently 1570.00. That he works with a salary of TL 20.000,00 in exchange for receiving a resignation letter from him by the employer. Stating that TL has been paid and that this payment has been paid in installments, he has asked the defendant to collect the overtime, annual leave, national holidays and general holidays receivables with the balance severance pay.
The defendant’s deputy asked for the dismissal of the case, arguing that the plaintiff cannot claim severance pay because the employee has resigned, the plaintiff’s working time does not exceed 45 hours a week, therefore he does not have much work, the wages for his work on national holidays and holidays are paid to him, and he does not have an annual leave fee.
Based on the evidence collected by the court and the expert report of an employment contract between the parties is terminated through okay and where the offer came from the plaintiff, therefore, that the plaintiff does not qualify for severance pay, overtime permissions permission on the grounds that it did not work that uses the holiday where there are partial acceptance of the case with the denial of the permit fee and a fee receivables ubgt severance pay and overtime, it was decided that the collection of receivables.
The decision was appealed by the parties’ deputies.
reason
1- According to the articles in the file, the evidence collected and the legal reasons on which the decision is based, the appeals of the parties’ deputies, which fall outside the scope of the following paragraphs, are not in place.
2- There is a dispute between the parties as to whether the employment relationship ends with the decommissioning of the employee.
In general, the right to terminate an employment contract is a right that gives the right to immediately or after a certain period of time to eliminate the employment contract with a unilateral statement of will that must be addressed to the counterparty, which gives rise to disruptive innovation. The immediate termination of the employment contract for the rightful reason of the employee is regulated by Article 24 of the Labor Code No. 4857. The normative act of notification of termination of employment of an employee is considered in Article 17 of the same law. In addition, the law does not specifically regulate the resignation of a worker.
Termination of the employee’s employment contract without relying on a justifiable reason and without recognizing the notice period should be considered a resignation. The business relationship ends when the will to resign reaches the other party. Although the acceptance of the resignation by the employer is not mandatory, if the petition has not been processed by the employer and the employee continues to work at the workplace, there can be no real resignation. However, it should be recognized that if, despite the resignation, the parties’ willpower to work for a certain period of time converges, the employment contract is terminated by substitution at the end of the agreed period.
Conditional resignation, as a rule, does not apply. As is most common in practice, a request to leave should be considered not as a resignation, but as an obligation to enter into a substitution (termination agreement), provided that the employee’s rights to notice and severance pay are paid.
It is also a common occurrence that the worker’s will in the resignation petition is misappropriated. If the employer requests the employee to submit a written resignation petition with a promise that the compensation will be paid immediately and similar pressures, and the employee complies with this, there can be no real mention of a will to resign. In this case, it must be accepted that the termination was carried out by the employer.
A resignation letter issued as a result of the employer’s application for pressure cannot be valued. It is accepted that the termination is carried out by the employer in such cases by our department, however, it is necessary to evaluate whether the employer’s termination is justified (Supreme Court 9.HD. 3.7.2007 day 2007/14407 E, 2007/21552 K.).
If the employer receives a resignation petition by terminating the employee’s will for a justified reason, when there are reasons for immediate termination and he will take the appropriate termination path, it is also not correct to grant the resignation validity. It should be concluded that in this case the worker has rightfully terminated the contract.
Although the resignation document is based on, in conflicting cases, such as the fact that the employee has been paid notice and severance payments, the employer’s termination is mentioned in the notification to the Turkish Employment Agency, the impact of this contradiction on the validity of the resignation should be evaluated in terms of each concrete event.
If the statement in the resignation document has a general content, there is no illegal direction for the employee to indicate concrete reasons in the lawsuit petition. In this case, the real situation behind the resignation should be investigated.
If the employment contract ends with resignation, it is not possible for the employee to take advantage of the job security provisions, nor will he be entitled to notice and severance payments. Since the burden of the employee to pay notice compensation to the employer may arise in the event of resignation, documents of the type of resignation must be handled meticulously. An objection to the signature or an objection to which additions have been made to the text should be examined from a technical point of view in absolute terms.
According to the Law No. 4857, the provisions of the contract stipulating that severance pay will be paid to the employee even in case of resignation and workplace practices are valid, and in this case, severance pay should be calculated according to Article 14 of the Law No. 1475 and the severance pay ceiling in this article should be observed. It should be noted that the ceiling for severance pay, which is regulated by the aforementioned Law, is of an absolute mandatory nature.
In the concrete dispute, the plaintiff has conditionally resigned, stating the reason. He has retirement conditions, except for age, on the date of termination, as he put forward health reasons in his resignation petition. Therefore, it is erroneous to accept and reject partial payment as a substitute, while the difference should be included in the provision of severance pay.
3- Dec Claimant worker is entitled to a salary in exchange for his work on national holidays and general holidays and there is a dispute between the parties
In the Labor Code No. 4857, free time is provided for overtime work. If the employee has worked on holidays, the fee must be paid for this. The fact that a leave of absence is granted in exchange for this post-study does not indicate that you will not be eligible for vacation pay. Because it is not in accordance with the law to give free time or permission for vacation work.
The provision is mainly the expert’s report, with the ceremony to the plaintiff the official holidays (23 April, 19 May and 29 October) runs of the holidays presented by the plaintiff but the defendant uses to allow you to work permit workers on the grounds that plaintiff’s claims the absence of declared national holidays and public holidays. However, with the signature of documents presented by the defendant and the plaintiff by the defendant belong belonging to the year of 2008 and 2009 and between 2010 and 2013, national holidays and public holiday work has not been submitted as a document that you have permission for the document will be invalid even if they submit that, for the years 2010 and 2013, national holidays and public holidays will receive calculated that under the provision must be taken. The plaintiff’s refusal is erroneous on the grounds that the work cannot be proven, although it is confirmed by the statements of the plaintiff’s witnesses that the plaintiff worked on the specified days.
3- There is a dispute between the parties as to whether the decoy worker has done too much work.
In the expert report based on the judgment, a calculation was made with the determination that the plaintiff’s weekday work did not exceed 45 hours, but he was entitled to overtime pay due to his work on Saturday.
In the dossier there are documents that the plaintiff uses free time in exchange for his extra work on Saturday. It is erroneous to conclude that these documents will be received with incomplete examination and evaluation without being subjected to an assessment.
CONCLUSION: It was unanimously decided on 15.01.2018 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 interested parties upon request.
