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LABOR RECEIVED BY AN INDIVIDUAL EMPLOYEE

1-OVERTIME

T.R.YARGITAY General Assembly of Law

Base No. 2018/9-389

Decision No. 2021/191

Date: 02.03.2021

ONLY 50% INCREASE OF OVERWORK WILL BE BASED ON THE CALCULATION OF THE OVERWORK WAGE OF THE EMPLOYEE WORKING WITH DAILY FEES DUE TO THE REVENUE

SUMMARY …there is no regulation stating that workers who work on a daily wage based on revenue, even if they work more than forty-five hours per week, are not entitled to overtime wages. In this respect, it should be accepted that the worker will be entitled to overtime wage if he/she has a work exceeding 45 hours per week in the daily wage earning system.

On the other hand, since the worker’s income will increase as the working time increases, only the 50% increase in the overtime wage should be calculated, assuming that the non-increased amount of the overtime wage is paid within the daily wage.

2-SERVICE AND NOTICE COMPENSATION AND ANNUAL LEAVE

  1. a) Determination of Working Time Subject to Severance Pay

This article states that in calculating the severance pay, the employer will pay the employee a 30-day severance pay for each full year from the date of employment to the end of the employment contract, and the same rate will be paid for periods exceeding one year. However, it did not envisage a special arrangement for employees with part-time employment contracts. For this reason, this article will also be applied in terms of determining the working time that is the basis for the severance pay of the workers working with part-time employment contracts.

There are some hesitations in practice regarding the determination of the working time as a basis for severance pay of workers working with part-time employment contracts. It has been a matter of debate whether only the actual working hours of the worker working with a part-time employment contract will be taken into account in the calculation of the seniority basis, or the period from the employee’s start to the employment contract until the end of the employment contract. According to the settled jurisprudence of the Supreme Court on the subject and the weighted view in the doctrine, the severance pay of the workers working with a part-time employment contract will be calculated over the period between the date of employment of the worker and the date the employment contract ends. Therefore, there is no difference between the workers working with full-time employment contracts and those working with part-time employment contracts in calculating the duration of the employment contract.

The recent decisions of the Supreme Court have also been shaped in this direction, and you can find the relevant decisions below.

9th Civil Chamber of the Supreme Court of Appeals 2009/44744 E., 2009/33940 K. and its settled decision dated 08.12.2009:

“Although part-time work is included in the Law, how the seniority will be determined, how to benefit from rights such as notice and leave, and the form of calculation regarding these rights are not regulated as normative. The issue is resolved by the decisions of the Judiciary. It has been accepted by our Office that the right to severance pay may arise and that the worker will be entitled to leave after one year has passed from the date he started working at the workplace, whether it is a few hours a day or in the form of a few hours each day. K.) The wage to be taken as a basis in the calculation should be the wage received by the worker for partial work.”

The established case-law of the 22nd Civil Chamber of the Supreme Court of Appeals 2015/18446 E., 2017/22630 K. and 23.10.2017:

“Although part-time work is included in the Law, how to determine seniority, how to benefit from rights such as notice and leave, and the form of calculation regarding these rights are not regulated as normative. The issue is resolved by Judicial decisions. Whether in the form of a few hours each day, it has been accepted by our Office that the employee’s right to severance pay may arise and he/she will be entitled to leave after one year has passed from the date he started working at the workplace.

  1. b) Determination of 30-Day Salary Based on Severance Pay

In subparagraph 5 of the first paragraph of Article 14 of the Law No. 1475 in effect, “for each full year, the employer pays the employee a severance pay in the amount of thirty days’ wages.” provision is included.

The provision of the law will have to be understood and implemented as the wage that the part-time worker can receive in return for the remaining working time within the thirty-day period. Labor Law No. 4857 m. 13/2 “The divisible benefits of a part-time worker in terms of wages and money are paid in proportion to the time he or she works compared to the full-time equivalent worker.” The provision also makes it possible to make severance pay on a proportional basis. As a matter of fact, the established jurisprudence of the Court of Cassation is that the wage received by the worker with a part-time employment contract within a 30-day period proportional to the working period should be the basis for calculation.

Court of Cassation 9th Civil Chamber 2004/9961 E., 2004/27728 K. and its settled case-law dated 13.12.2004:

“In cases of part-time employment, the monthly wage paid to the plaintiff in return for part-time work should be taken into account in the calculation of severance pay.”

  1. In Terms of Notice Compensation

We have explained above that the determination of whether a part-time employee is entitled to severance pay will be based on the date of employment, not the way the employee works at the workplace. The same principles apply in terms of notice indemnity. The notice pay of the employee working with a part-time employment contract will be calculated in proportion to the weekly working time and will be less than the full-time employee whose termination notice period is the same.

  1. In terms of the Right to Annual Paid Leave

In order for employees to be entitled to annual paid leave within the scope of Article 53/1 of the Labor Law, they must have worked for at least one year, including the probationary period, from the day they started to work at the workplace. For workers working with a part-time employment contract, the one-year working period foreseen to gain the right to annual paid leave will be applied as it is applied to workers working with a full-time employment contract. The basic rule of paying the employee who works with a part-time employment contract in proportion to the time worked is also valid for the wages related to the weekly holiday wage, national holidays and general holidays.

Emsal Naz Gürbüz

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