- Law Department Article No:2018/6134
Decision No :2018/14964
Date of Decision: 09.07.2018
THE DECISION OF THE SUPREME COURT
TRIBUNAL: EMPLOYMENT TRIBUNAL
CASE TYPE: RECEIVABLE
Examination of the decision made as a result of the lawsuit between the parties on appeal from Dec defendants …
Tourism is the Stone. Auto. Ur Food. Jul. Speed. Communication San. Ve Dış Tic. Ltd.As requested by the deputy,
it is understood that the appeals are pending. The case file is organized by the Examining Judge for
after listening to the report, the file was examined, discussed and considered as necessary:
THE DECISION OF THE SUPREME COURT
A) Summary of the plaintiff’s request:
The deputy plaintiff, the defendant worked in the employer from 15/11/2007 to 25/07/2011 and was Deci
paying Sunday off every Saturday, the plaintiff who has rightfully terminated his employment contract for non-payment,
claiming that some of the labor receivables have not been paid, severance pay, annual leave fee, overtime work
they will receive a salary, a week off fee, a minimum subsistence allowance, a notice distribution fee and a penalty deduction
wanted to.
B)Summary of the respondent’s response:
The defendant’s deputy Igdash said that no hostility could be directed to his client, that he would receive the work on Sunday
arguing that his acceptance by his client is not possible, that the claims and demands are unwarranted
he asked for the case to be dismissed.
The defendant … the company’s deputy, the plaintiff working with a term employment contract, the Decider of the tender between his client and Igdash
after the termination, he released his client, the plaintiff was shown another job, but the plaintiff’s job was Igdash
he started working at another company that does not have a Sunday job, claims and requests are inappropriate
he asked for the case to be dismissed, arguing that it was.
The other defendants have not responded to the lawsuit.
C) Summary of the decision of the Local Court: According to the evidence collected by the court and the expert report, the plaintiff’s workplace personal and insurance record
from the examination of the plaintiff’s records; Dec 15/11/2007 to 25/04/2008, the defendant … Construction
Decommissioned from 25/04/2008 to 09/06/2008 in his company … In the Construction Company, 17/07/2008-
on Dec. 08/13/2009, the defendant … Limited Liability Company, on Dec. 01/09/2009-12/09/2010
defendant … in his company, Dec. 07/09/2010 to 31/05/2011 defendant … in his company 01/06/2011-
the defendant was in his company between 20/06/2011 and 21 Dec06/2011 and the defendant was in his company between 18/08/2011 and 21 Dec06/2011 …
Notice of termination of employment contract in the last employer company where he works in his company, minutes or
in the absence of any documents, this company has registered the plaintiff as a new company, system distribution
the plaintiff’s registration was terminated on 25/07/2011
he has terminated his employment contract due to non-payment of pay and other legal rights as of the date
he claims that the date of the plaintiff’s start of work in the new company is the date of 13/08/2011, The plaintiff who was heard
since his witnesses confirmed the plaintiff’s claim, the plaintiff could not receive their money, he was dismissed
they reported that he had left, that the payments were delayed by about 1 month, that the plaintiff had done Igdas’s meter reading job
the defendant’s witnesses, who were heard, reported that they had done so, because the plaintiff had found a job in Iski, he was dismissed
he stated that he was leaving, and also that both parties witness the plaintiff’s fee and the extra work he has done and the week
in the expert report dated 22/05/2014, he made a detailed statement about his holiday work
a detailed calculation is made, according to the scope of the entire file by the court, from the plaintiff to the defendants
According to the service purchase agreement concluded with respect to Igdaş’s meter reading business, the meter reading business
the defendant gave subcontracting companies, these companies are sub-employers, Igdas is the main employer
according to the nature of the work performed, the sub-employers vary by tender, but the contracts
termination of work of subcontracting companies, for which there is an indefinite-term employment contract, taking into account the successive
although they terminate the plaintiff’s job as a fact, the fact is that the actual employer’s job is continuous, ongoing,
if it has been commissioned to other subcontracting companies, the work continues uninterrupted, the plaintiff’s last subcontracting company
the fact that his contract also expired on 25/07/2011 due to non-payment of his fee means that the plaintiff has paid a
a record of his work at another company stating that he was fired because he started working at another company
since it started on 13/08/2011, it has no legal value, as of 25/07/2011, the plaintiff
according to the expert report, it is fixed that their fees have not been paid,
the termination of the plaintiff’s employment contract based on this reason is justified in accordance with paragraph 24/ II-e of law 4857,
the amount that the plaintiff will deserve severance pay is the same as the amount calculated by the plaintiff’s expert
the claimant’s compensation should be given in the manner calculated in the expert report …,
the defendant’s employer, for whom he works during the week off, the plaintiff is paid overtime pay and the week off pay
it cannot be proved by a payroll or equivalent document, but it is a long-term calculation
more than stated … and a 30% equity discount on the amount that you will receive on the week off
by making this amount too much … and that the week holiday fee should be given to the plaintiff, the expert
the amount calculated by him means that the right of leave has been exercised or its monetary value has been paid after termination
with a paid leave book or equivalent document signed by the defendant who has a burden of proof on him
it cannot be proved that this request should also be given to the plaintiff, the plaintiff’s minimum subsistence allowance
since it cannot be proved that there is a receivable, the plaintiff distributes a notice and other fees
since it cannot be proved that the cuts were made, these requests should be rejected, the actual employer is the defendant
2/6 of Igdash’s Law No. 4857. in accordance with the article, the last employer is responsible for all receivables
igdas turn and take off in terms of severance pay that the defendant is responsible, along with other defendants in the amount calculated in terms of the running time of the expert report that will have limited responsibilities, too … and that he will take a weeks vacation time since the calculation was made in terms of running the company, the company with principal
since the defendant Igdaş is the main employer, for which the employer will be jointly responsible, the animosity objection is in place
however, in terms of liability in service purchase agreements and administrative specifications, the defendant Igdaş
if it has transferred responsibility to the companies from which it receives services, it will only bind the parties to this agreement,
concluding that it will be internal affairs, it will not be able to eliminate the rights of the plaintiff arising from the law
Decision No. 2014/269 of 02/10/2014, in which this decision was made, the defendant …Ş., … Turzim
Transport Automotive Food Products are Clean.Jul. Speed. Contact Industry and Foreign Trade Ltd. Şti. the regents
9th Supreme Court on appeal. According to the decision of the Law Department dated 15/03/2016 No. 2014/37749
incomplete examination and audit of whether the plaintiff is entitled to the week break fee
according to the unfavorable report, the provision has been established, 15 of the meter reading records in terms of service time-
about 20 days … where there are months that appear, these periods are not evaluated, why are premiums month by month
that the documents of incomplete payment have not been brought have been corrupted on the grounds that they have not been paid, and the violation order has been complied with,
after the breakdown, the deputy plaintiff repeats his previous claims, the defendant … the deputy repeats his previous defenses,
documents showing why the premiums specified in the breakdown policy are paid incorrectly month by month, meter reading,
9th Supreme Court with opening and closing records. Together with the Court file by the Law Department
upon notification of files of a similar nature being examined, these files are also brought, brought
the documents and the entire file have been evaluated and an additional report dated October 16, 2017 has been received, the report has been brought
considering the fact that there is a difference between the documents and the Decommissioned service schedule, the previous
there is no need to make a change in the length of service in the report, only the week break fee
stating that the calculation should be made in terms of the receivables and as a calculation of the week break fee
332.56TL, upon objection to this report, the report dated 10/10/2017 was received from the same expert,
in this report of the expert witness, objections are not in place and no changes can be made to the report,
considering that this report is worthy of acceptance by the Court, the plaintiff asked the defendants to
the defendant subcontractor of the meter reading business with the service purchase agreement concluded in relation to the reading business
according to the data provided to the companies, these companies are sub-employers, Igdaş is the main employer, and
although sub-employers change by tender according to the nature of the work, the contracts follow each other
taking into account that there is an indefinite-term employment contract, subcontracting companies can terminate the plaintiff’s job as
even if they terminate, in fact, the actual employer’s job is continuous, ongoing, other subcontracting companies
the contract of the plaintiff in the last subcontracting company, in which it was commissioned, the work lasts uninterrupted, is also paid
the payoff was terminated on 25/07/2011 due to the fact that the plaintiff was working in another company
on 13/08/2011, the employee of the other company was dismissed for allegedly starting
as of 25/07/2011, the plaintiff’s termination has no legal value because it has started
according to the expert report, it is fixed that their fees are not paid,
the termination of the plaintiff’s employment contract based on this reason is justified in accordance with Article 24 / II-e of the Law No. 4857,
the amount that the plaintiff will deserve severance pay is the same as the amount calculated by the plaintiff’s expert
the claimant’s compensation should be given in the manner calculated in the expert report …,
the plaintiff’s overtime pay is paid by the defendant’s employer’s payroll or equivalent value
the amount that he will receive is more than the specified amount, which cannot be proved by a document, but because a long-term calculation has been made
over 30% of the equity discount more than this amount needs to be given to the plaintiff made of … of the fees, the calculated amount of the expert that is granting the right to allow, or the monetary equivalent of that paid by the defendant after the termination of the burden of proof on a sabbatical or equivalent document by signature book, it could not be proven, this demand the provision of the plaintiff is that the plaintiff is the minimum living allowance and receivables
since it cannot be proven, the plaintiff has distributed a notice and other fees have been deducted
since the matter cannot be proven, the rejection of these requests is required, the main employer is the defendant Igdaş No. 4857
2/6 of the Law. in accordance with the article, the last employer is responsible for all receivables, notification and permission
the defendant is responsible for the receivables together with Igdash, and in terms of severance pay, the other defendants
they will have limited liability for the amount calculated in the expert report in terms of the time they work,
because he will take an extra … and a week off … because the calculation is made in terms of the time his company is running …
the company and the principal employer will be jointly responsible, the defendant Igdaş is the principal employer
liability in service purchase contracts and administrative specifications where there is no objection
from the point of view of the defendant Igdaş has transferred the responsibility to the companies in which it receives services, although this agreement
it will only bind the parties, have internal affairs, eliminate the rights of the plaintiff arising from the law
after the provision of the research and documents specified in the decision of the Supreme Court, which it cannot remove
according to the last expert report, there has been no change in the length of service in the previous decision, and
excluding the violation of the previous decision of our court in terms of rights and responsibility
since it has been finalized, the severance pay, excess … fee, leave fee in the previous decision of our court
the established provision should be repeated exactly, but the plaintiff will receive a week break fee
as a Sunday study, we request and request that the expert’s work be disrupted as specified in the Supreme Court’s decision
since the calculation is made and the calculation is based on witness statements, the expert calculates
Sunday at the request of the weekend … fee of 232.79 TL with a 30% discount on the excess … fee
since it is passed as a Sunday work, the plaintiff must be collected as a Sunday fee by our court
excluding the violation of the previous provision in respect of other claims rejected in the previous decision
to the conclusion that the rejected requests in the decision before it is finalized should be repeated exactly the same
severance pay, overtime pay, Sunday work fee, leave fee
acceptance of their requests and rejection of other requests have been decided.
D) Appeal:
During the decision period, the defendant was appealed by the deputy of his company.
E) Justification:
1- According to the articles in the file, the evidence collected and the legally required reasons on which the decision is based, the defendant …
The Company’s appeals that fall outside the scope of the following paragraphs are not valid.
2- In a concrete dispute, the first decision of the Court is in accordance with the decree No. 2014/37749 of our Department “Decision
within the period of time, the defendant … has been appealed by the Company’s deputy and the defendant … deputy… 1- In the file
according to the articles, the evidence collected and the legally required reasons on which the decision is based, the defendants … Gas
Distribution A.Sh. and … Tourism Transportation Automotive Food Products Cleaning Services Communication Industry and Foreign Trade Ltd.appeals that fall outside the scope of the following paragraphs are not in place. 2- Dec issue of whether the plaintiff employee is entitled to a week off pay is a matter of dispute between the parties…. Sunday Sunday is the day of the week break, although it is calculated on Sundays according to the meter reading records of … In the case of a concrete discrepancy, the week break must be used on the Sunday of the week break
since there is no obligation, the week break fee calculated under the name of Sunday
is it calculated for continuous 7-day work in the calculation, or is it calculated for 7-day periods
is it calculated for periods of uninterrupted 24-hour rest just because it is worked on a Sunday
it should be clearly stated in the expert report. In the report of the main expert to the decision, it is stated that
since there is no clarity and the expert report is not conducive to audit with this aspect, this expert report
the establishment of provision on its basis is erroneous. The work to be done by the court shall be subject to an audit on the specified issue
it is convenient to go to the conclusion by receiving an expert report. 3-In terms of the plaintiff’s term of service, the meter reading
there are months that appear in the records about 15-20 days. In the service casting line, premiums are the first
except for a few months, it was usually paid on days such as 17, 18, 20 days.The plaintiff’s witness said, “normally 16
Saturday Dec Sunday between these … days we were working de facto for 21 days our day insurance is being made
there were also days when we didn’t work 9 days a month, but at least two or three of these days we are opposite
we would have gone to other affairs of his group for notification affairs,”he said in a statement. Court
it is accepted by the plaintiff that he also works for days that are not paid a premium on the service casting schedule
the provision has been established by. The plaintiff’s records should be evaluated in terms of length of service. But
particular attention should be paid to the following points while this assessment is being made; on the same day by our apartment
in some of the files of a similar nature that were examined together, it was found that the meter read-on-off records
upon examination, it was found that the days of these works were not the same in all lists.
For example, on the day when the employee’s work does not appear in the breakdown of the reading records, the shutdown
the employee’s work is seen in the records. Therefore, meter reading records, meter opening records,
meter shutdown records, notification distribution records should all be brought separately, in one of these records
or whether the plaintiff’s work appears in other records on days when his work does not appear in several
it should be noted that it does not appear. … documents showing why premiums are paid incorrectly month by month
he should be subpoenaed. Witnesses should be heard again if necessary. This review will be conducted and
according to the research, it is examined whether there will be changes in the plaintiff’s accepted length of service
conclusion should be reached, if there is a change in the accepted length of service, all receivables from this
it should be taken into account that it can be affected.” it is broken down by justification.
The calculation that he will receive a week break made after the break and based on the provision is based on the break
it is understood that it is appropriate.
However, in terms of the length of service, the deputy plaintiff did not make a statement after the breakdown, similar to
he also did not put forward any new evidence other than the files. Therefore, the calculations are based on the length of service
the only services available in the file are the casting table, other … records and the meter reading sent by the defendant
it should be done according to the days when the plaintiff was found to be working in his records, and the result that will be revealed will be the case
the impact of the issue on receivables should also be considered separately.
F) THE RESULT:
If the appealed decision is OVERTURNED for the reasons written above, the appeal received in advance
the refund of the fee to the relevant person upon request was decided unanimously on 09/07/2018.
