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Supreme Court 22nd Civil Chamber
Base Number: 2012/3328
Decision Number: 2012/8399
“Text of Justice”
COURT: İzmir 9th Labor Court
DATE: 13/02/2012
ISSUE: 2011/556-2012/76
The plaintiff claimed that the defendant worked at the workplace between 06.05.2005 and 13.05.2011 and that the employment contract was unfairly terminated by the employer due to absenteeism, and demanded the collection of severance and notice indemnities and some labor receivables.
The defendant requested the dismissal of the lawsuit, claiming that the plaintiff left the workplace by arguing with other workers working at the workplace on 08.06.2011, did not continue to work without a valid excuse in the following days, and the employee was terminated. The contract was terminated due to absenteeism for just cause.
Based on the collected evidence and the expert report, the court decided to partially accept the case in order to terminate the employment contract on the grounds that the defendant was unfair.
The defendant appealed the decision.
1-According to the articles in the file, the evidence collected and the legal force majeure on which the decision is based, the objections of the defendant that are outside the scope of the following paragraph are not appropriate.
2- There is a disagreement between the parties as to whether the plaintiff worker works overtime.
The worker who claims to have worked overtime is obliged to prove this claim. The rules regarding payrolls apply here as well. The payroll bearing the employee’s signature is definitive evidence until proven false. In other words, the overtime claim that appears on the signed payroll is assumed to have been paid, unless fraudulent payroll is claimed and proven.
The workplace records, especially the documents showing the entrance and exit to the workplace and the internal correspondence of the workplace are proof of overwork. However, if the overwork cannot be proven with written documents, the parties must come to a conclusion with the statements of witnesses. Apart from this, some general facts that everyone knows can be taken into account at this point. It should be investigated whether there is overtime work according to the nature and intensity of the work actually performed by the worker.
If it is understood that overtime wages are paid on the signed payrolls, it is not possible to say that the worker actually works more. However, if there is a reservation that the employee will be paid overtime, the proof that he has worked more than what appears on the payroll can be made with any kind of evidence. In case the payrolls are signed and unregistered with reservations, the worker must prove with a written document that he has worked more than the payroll. In the event that different amounts of wages, including overtime wage accruals, are made through the bank each month, if the payroll is not signed by the worker, but no reserve is claimed, it is above the amount paid. This leads to the conclusion that overtime must be proven with written evidence.
In the concrete case, it is seen that overtime wages were accrued for the 11-12 months of 2010 and 1-2-4 and 5th months of 2011 in the signed payrolls submitted by the defendant and the amounts accrued in the payrolls were deposited. deposited into the plaintiff’s bank account and paid without reservation. Although it is stated in the explanation section of the expert report on which the judgment is based that these accrued months should be excluded from the calculation, it is seen that the said period is not excluded when calculating. Making a judgment based on an erroneous expert report necessitated reversal.
3-Another dispute between the parties is whether the worker is entitled to remuneration for unused leave periods.
In Article 59 of the Law No. 4857, it is stipulated that if the employment contract is terminated for any reason, the annual leave periods not given to the employee will be paid over the last wage. The termination of the employment contract is necessary for the annual leave right to be turned into a wage. At this point, it does not matter how the contract is terminated and whether it is based on a just cause.
At the point where the annual leave is used, the burden of proof lies with the employer. The employer has to prove the use of annual leaves with a signed leave book or an equivalent document. The employer, who bears the burden of proof in this regard, may swear to the worker.
In the concrete case, in the annual leave book submitted by the defendant, there are signatures stating that the plaintiff used the forty-two-day annual leave to which he was entitled according to his working period. The content of the minutes of the warning penalties given to the plaintiff by the illiterate employer is also determined before the termination. Due to the conditions stipulated in Article 206 of the Code of Civil Procedure No. When 6100 could not be reached, the court accepted that the signatures of the plaintiff in the annual leave book could not be considered valid, and decided to award the annual leave fee for a period of forty-two days.
is work.
The plaintiff’s wife, Witness Oruç Budanır, declared that the plaintiff took fifteen days of annual leave during his working period. Despite the fact that the plaintiff stated that the signatures on the payrolls, regarding the evidence presented by the defendant employer, did not belong to him.
, did not claim that the signatures in the annual leave book did not belong to him and did not bring a defense. He said they were taken from him through fraud.
The rule regarding the arrangement and conditions of sealed, fingerprinted and marked documents in Article 206 of the Law No. 6100 is not a form of validity, but a form of proof. In this respect, this form of regulation stipulated in the aforementioned article is valid only if the fingerprint or the special mark of the seal is rejected; In this respect, if the fingerprint is recognized, the document from which the fingerprint is taken is considered valid even if it is not approved in accordance with Article 206 of the Procedure. If a document is signed or marked without being read, it should be considered a valid document in terms of trust. Because, knowing this situation, a person who signs a document or takes fingerprints cannot later claim that the document is invalid even if he does not know about its content.
CONCLUSION: On 02.05.2012, it was unanimously decided that the appealed decision would be CALCULATION OF EXCESSIVE MONEY for the reason stated above, and that the objection fee paid in advance would be returned to the relevant person if requested.