The Turkish Constitutional Court has given an important decision concerning the labour life regarding violation of property rights due to non-payment of employee’s overtime wages.
With the decision of the Constitutional Court published in the Turkish Official Gazette dated 5 April 2022 and numbered 31800, an important jurisprudence has been developed stating that “workers’ right to property is to be accepted as violated due to overtime work and/or non-payment of wages for working overtime”.
The First Division of the Constitutional Court decided on date that of 22/2/2022, regarding the application of the worker named Onur Özdamar (Application No: 2019/1450), that the right to property guaranteed in Article 35 of the Turkish Constitution has been fundamentally violated.
Summary of the Incident Subject to the Case-Law
In the concrete case, the employment contract of the applicant worker was terminated unilaterally by the employer. The employer paid the severance pay, notice pay and annual leave converted into wages to the applicant. The worker filed a compensation lawsuit against the employer in the labor court. In his petition, he stated that the severance and notice payments and annual leave receivables, which turned into wages, were paid incompletely, and that the overtime wage was not paid at all.
Based on the testimonies of the witnesses it listened to and the expert report, the labor court, which reached the conclusion that the applicant worked overtime for 260 hours a year, accepted the case in terms of overtime wages.
The labor court requires the employer to obtain the applicant’s approval at the beginning of each year regarding overtime, taking into account the seventh paragraph of the Article 41 of the Labour Code No. 4758 and the second paragraph of the Regulation on Overtime Work and Overtime Working (Regulation) in force at the time of overtime work. In this regard, the court has accepted that it is obligatory to pay for overtime work after the first year, since the employer could not prove that he had received the applicant’s approval at the beginning of each year.
On the other hand, the regional court of appeal stated that, based on the amendment of the second paragraph of the Article 9 of the Regulation on 25/8/2017, that there is no requirement to obtain approval at the beginning of each year, the approval given by the applicant when signing the service contract is valid -unless he withdraws it- and the labor court dismissed the decision and dismissed the case.
In the face of this situation, the worker claimed that his property right was violated due to non-payment of overtime wage.
The Constitutional Court, has decided that the employee’s right to property was violated due to the non-payment of the overtime wage.
Even if there is a provision in the employment contract that the compensation for the overtime work of the worker is included in the original wage after the final decision, overtime must be paid separately. For workers whose employment contract has a provision stating that “overtime compensation is included in the main wage”, in case of working overtime (overtime work or working overly), each hour worked must be increased by 25% or 50% depending on the situation in accordance with the Labor Law No. 4857.
