New Decisions of the 9th Civil Chamber of the Supreme Court of Appeals

2022-02-19T11:04:46+00:00 20 March 2021|

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New Decisions

Principle of the problem of evaluating the Saturday, which is decided as the 1st week holiday, in the annual leave calculation:

National holidays, general holidays and weekends corresponding to the annual leave period are not taken into account during the leave period according to Art. If Saturday is explicitly decided as a week holiday at the workplace, it is deducted from the annual leave period also on Saturday. If Saturday is decided as a contractual holiday, there is no such deduction.

2. The principle of proving the contrary of the payroll, which includes the accrual of unsigned and overtime, with all kinds of evidence:

Since overtime is accrued in the signed and accrued payroll, as a rule, the contrary is proven by written evidence. In this calculation, it is not taken into account if there is no written evidence. Exceptions to this are,

– permit registration.

-Symbolic or token accrual

– low wage accrual. In such cases, the obligation to prove the payroll with written evidence is eliminated.

If the payroll, which does not include the signature of the worker but has accrued overtime work, is paid to the bank, the restriction on the employee’s proof of working more with written evidence has been lifted. If the payroll is unsigned, even if it includes accrual and the counterparty is paid to the bank, the worker can prove that he works harder with all kinds of evidence. The amount in the accrual is deducted from the overworked days.

3. The principle of overtime calculation in maritime labor law:

Overwork account for seafarers is calculated as 25% increase.

4. The principle of evaluating hostile witness statements for week holiday, overwork, and general holiday receivables:

In the cases of labor claims, it is not possible to prove only with the hostile witnesses of the plaintiff. But at the same time, hostile witness statements are valued with side evidence and facts. Describing with side evidence and fact; the characteristics of the job and the workplace. In other words, if the workplace and the workplace are compatible with hostile witness statements, these witness statements are valuable and valid. The second side evidence incident is the statements of the defendant witnesses. The witnesses heard by the employer and the statements confirming the working relations mean that the plaintiff has fulfilled the burden of proof. The third side evidence and fact are the reports and minutes prepared by the workplace inspection manager. Antagonistic witness statements supporting this are also sufficient. The fourth side evidence is the final court decision. The fact of overwork in the hostile witness’s own case must have been finalized.

It is not correct that the admirable witness statements were rejected by the judge at the beginning of the case. The court should first listen to the witnesses, be evaluated, and if the opposing party objects to the witness statements, the judge should make an assessment on the rejection of the hostile witnesses.

The principle of collective use of the 5th Week Holiday:

Weekend is the rest of the worker, who works 6 days a week, 24 hours a day. Therefore, it is against the spirit of the week holiday to use the week holiday collectively. A collective weekend break emerges as a need for workers working far from the settlement. For example, a person’s settlement is Ankara, but he works on the construction site in Balıkesir. When this person wants to use the week break on Sunday, he will spend the whole day on the road. In terms of this worker, collective use of 4 days a month essentially serves the purpose, but is against the spirit of the law. The Supreme Court considers that the first day of the worker who uses a collective weekend holiday for 4 days in the last week of each month will be the first day of rest, and the week before that will replace the week holiday. He states that the other three days cannot be considered as a week holiday. The 9th Civil Chamber of the Supreme Court considered the remaining three days as the other leave given by the employer. In its final decisions, the 22nd Civil Chamber of the Supreme Court states that the fee for that period should be deducted from the weekly holiday fee. In other words, the 3-week vacation fee of the worker who takes 4 days of leave will be calculated with 150% increase, but the wage for the 3 days without work will be deducted from this calculation.

6.The principle of the judge’s duty of clarification and the need to rest the principal on this issue in accordance with the Article 31 of the HMK in the event of not allowing a long leave to be allowed on annual leave:

During the trial, the Judge must personally call the worker and ask questions to the worker in terms of working and resting time. The explanations of the worker in terms of working and rest periods can be explained by the worker himself or his / her deputy.

7. The annual leave wage is subject to a 5-year statute of limitations for all periods, regardless of the termination date.

8.In terms of workers working abroad, if there are some days that the employer does not work according to the legislation of that country, the principle of what the wages of those days will be:

If a Turkish worker works abroad, if Turkish national law is applied to this person, this worker must use the religious national holiday. If the worker works these days, he must be paid in return. However, there may be days when working is prohibited in the legislation of the country where he works. (Christmas day etc.) In such a case, the UGBT wage that the worker works is paid by the employer. However, according to the laws of that country, if there are days paid without working (Christmas day, etc.), the wages of these days are deducted.

9. The principle of overworking of forest fire workers and workers on watchtowers;

According to the collective bargaining agreement, these workers are paid 3 hours of overtime wage per day, regardless of whether they work overtime or not. According to the Supreme Court, only the statements of the plaintiff’s witness are not sufficient for these workers to prove that they overwork. Written evidence is needed to prove overwork.

10. The principle of responsibility of the Headquarters for workers employed in provincial or district organizations according to the law of political parties:

If a permit or approval has not been obtained from the Headquarters for the employee to work in the provincial or district organization, the employer who actually employs that person in the provincial or district organization is responsible. The headquarters has no responsibility as an employer.

11. Principle of determination of hostility and responsibilities in school family unions:

The worker, whose wages are paid through the parent-teacher association, can direct this hostility to both the minister of national education and the parent-teacher association when the conflict occurs. Or he can direct one of them. However, in reemployment cases, hostility must be directed against both employers.

12. The principle of hostility problem in the case of employing workers abroad:

Overseas companies have a de facto extension of the domestic workers in companies outside tried to even be held responsible company in Turkey due to organic vineyards.

13. Principle of jurisdiction problem in a lawsuit filed by faculty members working at foundation universities:

The jurisprudence regarding these files has not been consolidated yet.

14. The principle of whether the contracts between the foundation university and lecturers are definite or indefinite:

Case law has not been consolidated yet.

15. If an unjustified appeal has been filed, how to review an appeal:

If the appeal is filed with a petition of attitude or if the reasoned appeal is filed after the period of appeal, the courts of appeal have made an examination limited to public order in accordance with the HMK Art.355, however, article 369, which regulates the appeal, stipulates that the cases of contradiction to the explicit provision of the law can also be examined. The Court of Cassation concluded that in cases of contradiction to the explicit provision of the law, an investigation and reversal decision may be taken.

16. Principle of the plaintiff’s obligation to concretize in the petition:

The items that should be included in the wage based on the worker’s compensation; roadside assistance, food assistance, etc. There is a question of whether the benefits that can be measured with the money provided to the worker will be taken into account if they are not clearly concretized in the petition. As the law stipulates how to calculate severance pay, 9.HD of the Supreme Court states that they are taken into consideration as long as they are proven. 22.HD was of the opinion that these other rights should be disclosed. As a common method, the worker should explain what all his social rights are in a monetary equivalent in the workmanship claim he filed. If this is not done, these rights are not added to the compensation only by the statement of the plaintiff’s witnesses. However, the interests of the worker arising from the law are added directly. If these rights are confirmed by law, written evidence or the defendant witnesses, the rights that the plaintiff has forgotten to explain in the petition are added to the compensation of the plaintiff.

17. The principle of the judge to show the deadline for the way to the law incorrectly:

Although the judge has shown the legal remedy period incorrectly in his decision, the legal remedy can be applied within the wrong time shown on the land. However, it is unacceptable to apply for a legal remedy within a period outside the implementation, that is, in a period that is contrary to the usual flow of life, even if it is written on land.

18. The principle regarding whether the period given for improvement is limited to a period of 1 week and whether this period is definite or not:

The 1-week definite period in article 181 of the HMK is not an exclusive period for the cases where the plaintiff says “I will be given the time to correct my case”. This period is the time given for the completion of the improvement process, that is, the completion of the correction fee to be recorded in the report. According to the HMK Art.177, the plaintiff party can correct his case until the investigation is completed. Therefore, when a plaintiff says “Give me a time to improve”, the judge can give a period of time, but if he has given a period here, the 1-week period in HMK Art181 cannot be applied here.

19. The principle of whether a new claim will be possible in rehabilitation:

For example, in the petition, seniority, notice, annual leave were requested. Although there were essentially explanations about overwork, the demand for overwork was forgotten by the plaintiff. While it is demanded to increase other receivables with improvement, overtime wages may also be requested.

20. The principle of whether the type of case can be changed or not by amendment:

The type of the case cannot be changed by means of improvement. For example, an indefinite debt action cannot be turned into a partial action and a partial action cannot be turned into an indefinite debt action. Head of the 9th Civil Chamber of the Supreme Court of Appeals; It adopts the view that the type of the case cannot be changed with partial breeding, but it can be changed with full breeding.

21. Whether a time can be given for the completion of the fee in case of not paying a fee for improvement:

If one of the parties has not paid the improvement fee together with the petition for the improvement, this fee can be completed. If the correction fee is not completed by the parties, the court can automatically complete the improvement fee with the decision and judgment fee.

22. The principle to which stage the document terminating the debt of the debtor can be put forward:

Receipt and similar documents, release or even annual permit can be claimed at every stage. This includes the appeals stage. However, the annual permit is a proof tool. The objection is not in the nature of payment. Therefore, the time when evidence can be put forward is limited by law. The Court of Cassation has accepted that the document terminating the debtor’s debt can be put forward and evaluated at the appeal stage.

23.The principle of limitation of time put forward by one of the principal employer and sub-employer relationship to the other:

If the main employer claims the statute of limitations, only he / she will benefit from it. It does not spread to the sub-employer. However, if the sub-employer claims the statute of limitations, since the sub-employer is the real debtor, the main employer will benefit from this statute of limitations.

24. Principle of the effect of waiver in the principal employer – sub-employer relationship:

The main employer is not a real employer. Waiver of the lawsuit filed against the main employer does not affect the sub-employer. However, the waiver of the lawsuit filed against the sub-employer is valid for the sub-employer. Disclaimer affects both employers.

25.The principle of paying additional payments to employees in social assistance and solidarity foundations: The Court of Cassation has accepted that these employees cannot receive additional payments.

26.Telecom transfer notification payments additional payment bonus principle:

In the decisions made by the Supreme Court, it has been concluded that these cannot be written in the transfer notice.

27.The principle of whether the basic wage from which the employee benefits from the collective bargaining agreement can be reduced if the wage in the individual labor contract is higher:

It is possible to reduce the basic wage of the worker because when looking at the rights provided by the collective agreement cumulatively, these rights are in the worker’s interest.

Principles to be applied in cases filed since the beginning of January 2021:
An indefinite debt lawsuit cannot be filed by the employee in terms of severance, notice, annual leave and basic wage claims.

If there are rights provided in kind, road, meal, etc. Since it will not be possible for the employee to meet the monetary equivalent of these, an indefinite debt lawsuit may be filed regarding the severance and notice pay receivables. However, since the annual leave fee and wage are not calculated from the wage covered, it cannot be filed as an indefinite debt lawsuit. In summary, if there is a travel and food allowance, the severance and notice compensation case can be filed as an indefinite claim.

The principle regarding whether it is sufficient to declare that the receivable is uncertain in the petition:

It is not sufficient to explain that the receivable is uncertain in the petition. If the receivable is uncertain, the creditor has two possibilities; can file a partial lawsuit or an uncertain debt action. For this reason, stating the numbers as 1000TL, 500TL in the petition and keeping the rights regarding the surplus are also unimportant in terms of the type of the case. The uncertain debt action must be clearly stated in the petition. It is not enough that the receivables are uncertain. If it is not disclosed that there is an indefinite debt action, this lawsuit is accepted as a partial debt action.

30. If there is no objective reason for a fixed-term employment contract, the principle of whether it is possible for the employer to claim that there is no objective reason in this contract in the demands of the worker:

When a fixed-term contract is made between the employee and the employer, even if there is no objective reason, the employee takes a step, knowing that it is a fixed term. It is accepted that the employer’s claim that there is no objective reason is an abuse of the right.

31.The principle of severance pay problem in case of the automatic termination of the fixed-term employment contract at the end of the term:

There is no doubt that the severance payment will be paid in the termination of the fixed-term contract as to be entitled to severance before its term. If the employee declares that the contract will not be renewed at the end of the fixed term contract, the employee cannot be entitled to severance pay. If the employer is informed that the contract will not be renewed, this has been accepted as termination. Therefore, the employee is entitled to severance pay. If it is not stated that the contract will be renewed by anyone at the end of a certain period and the employee does not come to work after the last day and the employer does not say anything, then the employee cannot be entitled to severance pay. However, it has been stated that in cases where a fixed-term contract is made in accordance with the law, severance pay must be paid in case of spontaneous termination. Since the contracts made with teachers and administrators working in private education institutions numbered 5580 have an objective reason as required by law, even when a new contract is made every year for 30 years, even when the last year ends automatically, the employee may have a claim for severance pay.

32. Principle of legal interest problem in objection to the workmanship claims part of the labor inspector report:

Article 92 of the Labor Law regulates the legal remedy for objection to the inspector report and report. In other words, an objection can be filed against the inspector’s report without the condition of legal benefit. Here, animosity is directed to the ministry. Because the person who has prepared the report is the ministry.

33. The principle of age in retirement:

A person who meets the criteria for retirement, excluding age, can receive severance pay from his workplace. It does not matter if the worker meets the retirement criteria and signs a contract to work elsewhere, to work elsewhere. This situation is not an abuse of right. The worker can only use this right once.

34.The objective cause factor principle for a fixed term contract:

Foreigners working in TR receive a temporary work and residence permit. These periods do not constitute an objective reason for contracting with foreign persons for a fixed term. What matters is the quality of the job. Here the contract is of indefinite duration.

35. License holder is not responsible for royalty contracts.

36.The principle of the legal nature of the notification made to the lawyer physically instead of electronic notification:

Physical notification made to a lawyer is an illegal notification. If the addressee is aware of the notification, it is deemed to have been served as of the date he declared that he learned.

Whether the e-mail is read or not, opened or not, it is deemed to have been served to the addressee at the end of the 5th day following the date of arrival.

37. To whom the notification of the petition should be made in the case of annulment of the objection:

In the case of annulment of the objection, the petition of the action must first be notified to the principal.

38. Additional tuition fees given to private school teachers are not considered as social aid.

39. The principle of how the worker’s overtime will be calculated in cases not exceeding 45 hours per week:

Even if the worker’s work does not reach 45 per week, exceeding 11 hours per day or 7.5 hours in night work is directly overwork. Since 45 hours of fixed wage is paid to the worker, the overtime wage to be calculated depending on the exceeding of the daily periods before this 45 hours is calculated with 150% higher wage.

40. Calculation principle of overwork in premium works:

If the wage to be received by the worker consists of only premium, the calculation of overtime is made according to the 0.50 increase calculation. The part without raise was covered by these premiums.

If the wage is a fixed fee and a premium based on a target or a quota, the overtime account will not be affected. A 150% increase is calculated over the fixed fee.

If the wage consists of fixed wages and premiums based on sales and number of trips, then the calculation is made according to the calculation of 0.50 increase over the average of 150% increased premiums over the fixed fee and both results are added.

41. Income tax exemption for workplaces operating in free zones belongs to the employer. The worker does not benefit from this right.

42.The principle of whether the collusion or invalidity determined in the principal employer / sub-employer relationship continues in the new tender period:

For example, between the years of 2011-2012, a contract and a sub-employer contract were established between the employee and the employer. In a lawsuit filed under this contract, it was determined that this relationship was fictitious. This situation concerns the contract between 2011-2013. If there are new subcontracting contracts signed in the following periods, the previous collusion does not affect the new contracts.

43.The principle of what will happen if an appeal fee is charged instead of the appeal fee during the appeal application:

If the right to legal remedy at that moment is an appeal, the appeal fee is substituted for the appeal fee. However, since the appeal fee amount is lower and the appeal fee is higher, in this case, it is decided to return the file to complete the party’s fee.

44.Türki law on religious foundations have been transferred to hospitals with health ministry. Since these people are now civil servants, they cannot request annual leave.

An employer who does not respond on the 45th deadline cannot make a statute of limitations by correcting the reply petition. It is not possible to improve something that does not exist.

46. ​​The 270-hour principle in which overtime is included in the fee:

On the part of the Supreme Court, in the opinion of the adopter, it is checked whether the employee has worked more than 270 hours in total in the last 1 year. If there is a period exceeding 270 hours, the worker is entitled to overtime wage.

47. It is not possible for the employee to resign for special reasons and to justify termination based on unpaid wages in a lawsuit filed within a short time. It was concluded that the person who resigned for private reasons resigned due to reasons arising from his private life. However, the resignation made upon the necessity can be turned into a rightful termination.

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