The employer, who employs the worker during the week’s holiday, has to give the worker 1.5 days’ wage for the week’s holiday. You can review the sample Supreme Court Decision.
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Base Number: 2016/7708
Decision Number: 2019/18054
“Justice Text”
COURT: LABOR COURT
The decision made as a result of the lawsuit between the parties was requested by the defendant’s attorney to be examined on appeal, and it was understood that the appeal requests were in time. After listening to the report prepared by the Investigation Judge for the case file, the file was examined, the need was discussed and considered:
JUDICIARY DECISION
A) Summary of Plaintiff’s Request:
The attorney of the plaintiff, claiming that his client worked as a transport driver and purchasing personnel from 17/10/2007 to 14/03/2014 at the workplace belonging to the defendant and that the employment contract was terminated by the defendant unfairly and without notice and maliciously, severance, notice indemnities and wages. , demanded the collection of overtime wages, national holiday general holiday wages, weekly holiday wages and annual leave wages from the defendant.
B) Summary of Respondent’s Response:
The attorney of the defendant stated that the plaintiff started to work on 21/11/2007, quit his job on 21/001/2008 voluntarily, entered the job for the second time on 16/04/2009 and left voluntarily again, as he claimed in the lawsuit petition, that he did not receive any wages. He requested the dismissal of the case, arguing that he used his paid leave, that the wages of his overtime work were paid, that he also used the weekends, and that he did not work during religious holidays.
C) Summary of Local Court Decision:
Based on the evidence gathered and the expert report, the court decided that the claimant’s right to demand severance and notice compensation arises because it was understood that the plaintiff worked at the defendant’s workplace for a total of 5 years and 28 days in two terms, and that the employer’s employment contract was terminated unjustly and without notice due to downsizing in the workplace. decided to be accepted.
D) Appeal:
Decision appealed against the defendant’s representative.
E) Reason:
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 that fall outside the scope of the following paragraphs are not valid.
2- There is a dispute between the parties regarding the calculation of the weekly holiday wage.
In accordance with the second paragraph of Article 46 of the Labor Law No. 4857, the employee’s wage is paid in full for the weekdays not worked, without any compensation for work. Although the law does not regulate how the wages of the worker working during the week break will be calculated, it has been adopted by our Office that the work done during the week break is considered overtime and accordingly the wage should be paid with an increase of fifty percent (Court of Cassation 9.HD 23.5.1996 day 1995/37960 E, 1996/11745 K. ). Accordingly, if you have worked during the week’s holiday, one and a half days’ wages must be paid in return for the work, in addition to a per diem that must be paid without working.
Weekly holiday wages are calculated over the period wages worked. It would not be correct to calculate according to the last wage. In this case, knowing the last wage of the worker is not sufficient for the calculation of the weekly holiday wages. The amount of workers’ wages within the period subject to the request should also be determined. If the wage of the worker for the past periods cannot be determined, the ratio of the known wage to the minimum wage and the determination of the unknown wage accordingly is accepted by our Department. However, it would not be correct to consider the ratio of the last known wage to the minimum wage in terms of previous periods, in cases such as the employee’s being promoted to various titles while working at the workplace or benefiting from a collective bargaining agreement recently. In such cases, wage research should be done for unknown periods from the relevant professional organizations and the other evidence in the file should be evaluated together and the result should be reached.
For jobs that are paid per piece or according to the amount of work performed, the calculation should be made by dividing the total wages earned within a pay period by the number of days worked. In terms of workplaces where the percentage method is applied, the sum of the wages earned by the worker that week is divided by six to obtain vacation pay. In the type of work where percentage or piece rate payment is envisaged, the weekly holiday wage should be calculated according to the increased part of the determined daily wage.
In the concrete dispute, since 1 daily wage to be paid by the Court without working in terms of working on weekdays is paid within the monthly wage, it is inaccurate to make a decision based on the erroneous expert report who calculates over 2.5 days, while the receivable should be determined by calculating 1.5 days for the unpaid weekdays.
3- In the expert report based on the decision of the court, the national holiday general holiday fee deserved by the plaintiff was calculated as net 855.15 TL.In the justification of the decision by the court, it has been announced that a reasonable discount of 1/3 based on presumption has been made from this receivable, and accordingly, it is wrong to decide 683.47 TL while it should have been a net 570.10 TL.
4- It is not stated in the judgment whether the amounts awarded are net or gross. 297/2 of the HMK. The fact that it was not considered to be contrary to the article and would cause hesitation in the execution also necessitated breaking it.
F) Result:
It was unanimously decided on 14.10.2019 that the appealed decision be OVERFINED for the reasons written above, and that the appeal fee paid in advance would be returned to the relevant person upon request.
