An employee can work for a maximum of 45 hours a week, a maximum of 11 hours during the day, and a maximum of 7.5 hours per night. In case of exceeding these limits, overtime work should be paid. According to the newly developed jurisprudence of the Supreme Court, even if the weekly working hours do not exceed 45 hours in total, if the night work exceeds 7.5 hours, the wage should be calculated by multiplying by 1.5.
• When calculating overtime periods, rest periods should be deducted.
Working time and working time are different concepts. The rest of the worker must be deducted from the duration of his stay at the workplace. The rest period should be at least 15 minutes for up to 4 hours, at least 30 minutes for up to 7.5 hours, at least 1 hour for up to 11 hours, and at least 1.5 hours for work over 11 hours. According to the decisions of the Court of Cassation, even if the plaintiff witnesses say less than the minimum rest periods, the breaks must be deducted from the working hours. If the defendant’s witnesses also declare that they have taken a break shorter than the minimum rest periods, the decisions of the Court of Cassation are left here and the statements of the defendant’s witnesses are valued and the calculation is made accordingly.
• Signed payrolls with overtime accrual are in the nature of conclusive evidence until proven falsehood.
According to the principle decision, 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 employee 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. For example, if the worker’s wage is 1000.00 TL and an overtime wage of 200.00 TL has been accrued in the payroll for October, and the worker has signed under this payroll, the worker cannot bring a witness for the month of October and prove that he has worked 20 hours rather than 10 hours. must.
In cases where it is assumed that the payrolls are for show, and in cases where the overtime accruals in the payrolls are accepted to be figurative, overtime can also be proved with a witness.
• If there is a reservation that more work has been done than is shown in the payrolls, these works can be proved by a witness even if the payroll is signed.
If it is understood that the overtime wage has been 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. If the payrolls are signed and there are no reservations, the worker can only prove that he has done more work than stated in the payroll, with written evidence.
• If the payrolls are unsigned, it can be proved with any kind of evidence that overtime has been paid, even if the overtime work has been paid through the bank.
If the payroll is not signed by the worker, but in case of payment of different amounts of wages, including overtime wage accruals, through the bank every month, since the worker cannot be expected to put forward a reservation, it is possible to prove with all kinds of evidence that overtime has been paid.
• Persons who can witness overtime work must be people who can know the working order of the worker and have worked at the same time as the worker.
In order for overtime work to be proven by witness statements, witnesses must be able to know the working conditions at the workplace. In addition, the working time of the witness constitutes the limit of the calculation. If the worker claims to have worked at the workplace for 5 years and will have two witnesses heard, the probability that one of these witnesses worked in the workplace for the first 2 years and the other witness for the last 2 years could not be proven. If the statements of the defendant’s witnesses are related to the middle 1 year, the calculation is made; otherwise, the studies related to this 1 year are considered unproven and the calculation is not made.
For example, the Supreme Court stated in a decision that the factory is very large and it is not possible for the person working on the 2nd floor to know at what times the employee on the 4th floor enters and leaves the job. For international truck drivers, if there is no tachograph record, no calculation is made based on witness statements alone.
If the employer has the evidence regarding overtime work, the court should ask the employer to bring the evidence, and if he does not bring it, the employee’s claims will be accepted.
• Can overtime be proven by mail and Whatsapp correspondence?
Evaluation of mail and Whatsapp correspondence depends on the court’s approval. However, these correspondences must be supported by witness accounts in any case.
• Can overtime be proven by the statements of witnesses with pending lawsuits against the employer?
According to an old practice of the Court of Cassation, the statements of hostile witnesses were not respected. anc
When the White Chambers came together, in the decision taken regarding the hostile witness statements, “The statements of the witnesses who filed a lawsuit against the employer at the point of proving their working hours should be approached with caution. In proving that they will receive overtime, week and general vacation, a conclusion cannot be reached only with hostile witness statements. However, hostile witness statements supported by circumstantial evidence or facts should be respected. In this context, matters such as the characteristics of the job and the workplace, the statements of the defendant’s witnesses, the minutes or reports prepared by the labor inspector, and the finalized court decisions regarding the existence of the receivables in question regarding the same working period can be considered as secondary evidence or facts.
• How is the overtime of sales representatives calculated?
Calculations should be made by looking at the work schedules of sales representatives regarding how many places they go during the day according to the Supreme Court.
• As a rule, senior managers cannot demand overtime wages.
As senior managers determine their own working hours, they cannot demand overtime wages as a rule. In order for a person to be accepted as a senior manager, his/her salary must be at the level required to be a senior manager. In addition, there should be no higher level person who can give orders and instructions to this person.
• If the overtime work is proved by the statements of witnesses, equity reduction is made. Equity reduction should not be such that it touches the essence of the right.
If the overtime calculation was made based on witness statements, equitable deduction should be made. In general, there is a 30% equitable discount. Equity reduction should not be such that it touches the essence of the right. For example, the Court of Cassation stated that the 30% equity reduction in a 2-year study touched the essence of the right. Equity reduction cannot be made in calculations based on written documents. Due to the fairness reduction, the refusal attorney’s fee cannot be ruled.
• Should “I have not done much work” printed on the payroll and its signature be validated?
There are decisions of the Supreme Court that it is not possible to make a calculation for that month, as well as the decisions of the Court of Cassation stating that it cannot be taken into account on the grounds that it is in the nature of release.
• If the overtime wage is accrued as “0” in the payroll and the employee’s signature is also present, this is not counted as accrual.
• Fee payment can only be proved by written document. For this reason, the declaration of the witnesses regarding the payment of overtime wages should not have any effect on the result.
• Coming to work early is not work. It is not taken into account in the overtime calculation.
• As a rule, there is no overtime in triple shifts.
• Well-known general facts are also taken into account in the proof of overtime work. Examples of well-known facts are the exclusion of the 3-month period in winter for concrete manufacturers, and the exclusion of the 3-month period in summer for asphalt pouring works. Working hours of shopping malls and pharmacies cannot be considered as a well-known fact.
• How is the overtime wage calculated in premium works?
If the wage consists of only premium in the calculation of overtime work, the overtime wage is paid with 50% of the hourly wage of the premium. If the wage consists of a fixed wage or a quota-based premium, the overtime wage of the worker is paid 150% of the hourly wage over the fixed wage. If the wage consists of a fixed wage and a premium depending on the sales, number of voyages (etc.), the overtime wage for the sale is calculated according to the hourly wage with an increase of 150% over the fixed wage and the overtime wage earned according to the fixed wage is determined.
• The overtime calculation is determined over the wages in each period.
In cases where the wages of the previous years are not known, the number of times the last wage is the minimum wage is checked, the wages of the previous years are multiplied by the same multiple and the calculation is made.
• How to calculate overtime according to tachograph records?
While calculating overtime based on tachograph records, the time between start and stop is taken into account. However, due to the nature of the work, the rest period should be reduced more than normal.
The same rules of proof are valid for week holidays, national holidays and general holiday wages.
Ozkok Law Firm
Stj. Hunting. Rumeysa Ozge Uzkan
