The Turkish Constitutional Court has given an important ruling regarding that has consequences for all employment contracts signed in Turkey.
The court has invalidated the employment contract that a bank had the employee sign when hiring, stating that “I make overtime work when necessary, the salary of overtime work is included in the main wage, I accept that I will not be paid any extra overtime money”. The court has rules that even if such a provision has been added to the employment contract the employee must be paid for overtime working in line with the Turkish Labour Code No. 4857.
An employee, Onur Özdamar, started working as a box office worker in a branch of a Turkish bank in the calendar year of 2008. The contract signed by the bank included the following article regarding overtime:
“The Employee accepts and undertakes to work overtime within the legal limits if deemed necessary by the Employer. The wage for this overtime work is included in the employee’s actual wage.”
Özdamar was being dismissed from his duty in 2015 after 7 years of seniority. The grounds were given for engaging in acts that would disrupt security and peace in the workplace and cause material damage. The employer paid the applicant TRL 18,977.13 as severance pay, TRL 4,020.56 as notice pay and TRL 1,035.77 as unused annual leave to the applicant on the date of 1/6/2015.
However, the employee, Özdamar filed a lawsuit in the relevant Labour Court. He stated that seniority, notice and annual leave receivables were underpaid and that overtime work wages was not paid at all. The employer denied the allegation of underpayment in the reply petition. The employer has stated that the employee did not have made overtime work.
Two former employees who were heard in the court declared that they worked overtime until 20:00-20:30 in the evenings while working at the workplace.
EMPLOYER’S SENIORITY HAS MISCALCULATED
In the report prepared by the judicial expert appointed by the court, it was determined that the employee was paid TRL 619.98 as severance pay, TRL 319.06 as notice indemnity and TRL 50.01 as unused annual leave fee.
The report also found that the employee works overtime for 260 hours a year, five hours a week.
In the supplementary report of the same judicial expert, the overtime wage to be paid to the employee was calculated as TRL 5,867.93 after the thirty percent equitable deduction.
Upon this expert opinion the labour court has accepted the case. In the rationale for the decision, it was stated that the employer must obtain approval from the employee at the beginning of each year in order to have overtime work. Pointing out that the applicant’s contractual overtime work is only valid for the first year, the Labour Court concluded that the employer could not prove that it received approval from the applicant in the following years.
The employer appealed against the decision. Adana Regional Courthouse accepted the appeal request. It reduced the severance and notice indemnities ruled by the court. As for overtime, the case if being flatly dismissed.
The court has noted that the controversial issue in his reasoning was whether the overtime approval should be obtained from the employee every year. After this decision, Onur Özdamar took the file to the Constitutional Court and made an individual application.
“MORE ERRORS OF THE REGIONAL COURT”
The Supreme Court made the following observations and evaluations in its examination:
– In cases where the overtime work of the worker is not in compliance with the law, it cannot be deduced that the overtime wage is waived based on the existence of prior consent.
– Even if it is accepted that the applicant consented to overtime work without demanding wages, it cannot be said that this consent also includes overtime work performed in violation of the mandatory provisions.
– The approach in the decision of the Regional Court of Justice ignores that there is a requirement for approval according to the legislation in effect at the time the applicant was overworked.
– Although the legislation that entered into force on 25/8/2017 considers the approval given when signing the employment contract for overtime work, it does not legalize the overtime work that was carried out without approval at the beginning of each year in the past.
– This assessment of the Regional Court of Justice, which constitutes a grave mistake, caused the applicant to be exposed to an undue burden and caused a serious imbalance between the interests of the employer and the worker, and therefore resulted in a violation of the positive obligations of the state stipulated in Article 35 of the Constitution.
PROVISION: TO PAY OVER WORK
For the reasons explained the Turkish Constitutional has decided unanimously as following:
The claim regarding the violation of the property right is acceptable,
The right to property, which is guaranteed in Article 35 of the Constitution, has been violated,
A copy of the decision is sent to the Mersin 2nd Labour Court for retrial in order to eliminate the consequences of the violation of the property right.
