T.C SUPREME COURT 9.Legal Department Basis: 2015 / 34061 Decision: 2019 / 19788 Decision Date: 13.11.2019
SUPREME COURT DECISION
COURT :EMPLOYMENT TRIBUNAL
As a result of the case between the parties, the decision was requested by the defendant’s attorney to examine the appeal, and it became clear that the appeal requests were pending. After hearing the report issued by the examination Judge for the case file, the file was examined, the need was discussed and considered:
SUPREME COURT DECISION
A) Summary Of The Plaintiff’s Request:
As a driver of the defendant the plaintiff’s attorney of the plaintiff in the workplace, working time abroad, that is, labor work due to non-payment of receivables has rightly scrapped, citing actin, severance pay, overtime, unpaid wages, annual leave and public holidays they wanted to take.
B) Summary Of Respondent’s Response:
The defendant’s attorney asked for the dismissal of the case, arguing that the act of employment was terminated by the defendant’s employer because the plaintiff did not come to work without justification and without permission, so he was not entitled to severance and notice compensation, and that he did not have any other Labor claims that he could claim.
C) Summary Of Local Court Decision:
Based on the collected evidence and expert report, the court decided to partially accept the case on the grounds that the plaintiff was justified in terminating the employment contract, worked overtime and worked on general holidays, received unpaid wages and annual leave fees.
D) Appeal:
The defendant’s attorney appealed the decision.
E) Justification:
1-according to the articles in the file, the evidence collected and the legal reasons on which the decision is based, the defendant’s Appeals, which are outside the scope of the following paragraphs, are not in place.
2-the plaintiff is a truck driver and there is a dispute about whether he is entitled to overtime pay.
Truck drivers can work in two ways: traveling domestically or abroad. The fees of truck drivers working in the transport business within the country can be decided between the parties as the basic fee, as well as the number of trips in addition to the fixed fee or the premium paid per kilometer traveled can be realized.
The wages of truck drivers working internationally are generally determined on the basis of the minimum wage and the time-related premium. In some employer applications, the minimum wage, called the guarantee wage, is not paid and only the time-dependent premium is paid. In this case, the fee of the truck driver consists only of Expedition premiums (Supreme Court 9.H.D. 21.05.2013 Day, 2011 / 10769 E, 2013 / 15255 K.)
Expedition premium is called allowance in practice and can vary depending on the country of destination. The said expedition premium is different from the advance issued for road tolls and other expenses, which are closed in exchange for a document on return to Turkey, and is completely the salary paid to the employee. Established Supreme Court decisions also recognize that truck drivers operating internationally will not work at the legal minimum wage (Supreme Court 9.H.D. 02.05.2013 Day, 2011 / 10981 E, 2013 / 13086 K. ; Supreme Court 9.H.D. 06.06.2013 Day, 2011 / 17648 E, 2013 / 17351 K. ; Supreme Court 22. H.D. 17.04.2013 Day, 2012 / 22153 E, 2013/8106 K.)
If the monthly wage of a truck driver working in the international transport business is controversial, if a final result cannot be reached with the evidence substituted by the parties, wage research should be carried out from the relevant workers ‘and employers’ professional organizations and, if necessary, trade unions. It should be determined how much the worker can charge per expedition by specifying the countries in which he performs the transport work during the time he works, and it should be evaluated together with other evidence covered by the file and concluded (Supreme Court 9.H.D. 02.05.2013 day, 2011/10981 E, 2013 / 13086 K.).
In case the monthly or annual number of flights of the worker is controversial in terms of the account of the expedition premium and this issue cannot be definitively proven by other evidence, the entry and exit records of the worker should be brought from the security units and evaluated accordingly (Supreme Court 9.H.D. 20.05.2013 Day, 2011 / 14649 E, 2013 / 15167 K.).
If it is claimed in an abstract way that expedition premiums have been underpaid or that the employer has been deducted, the employee should be asked to explain the periods of under-payment and the dates of deduction, and the demand should be embodied (Supreme Court 7.H.D. 11.04.2013 Day, 2013 / 2500 E, 2013 / 6317 K.). It is then necessary to evaluate the employer’s payment documents and determine whether there is an incomplete payment or deduction.
The foreign travel premium is not an octet of the fee, but is considered directly in the compensation basis fee. If the wage consists of the sum of the minimum (guarantee) wage and the expedition premium, the salary based on compensation is determined over the sum of the monthly expedition premium and the minimum wage by determining how many trips the worker makes per month. If the period of departure abroad varies and the expedition premium changes according to the country of destination, the main salary for daily compensation is determined by dividing the total amount of premiums received by the employee according to the trips he made in a year by one day (Supreme Court 9.H.D. 03.05.2013 Day, 2011 / 8904 E, 2013 / 13358 K.).
A truck driver who works abroad and receives a travel premium according to the country that goes with the minimum wage is not limited to the minimum wage that must be paid to him during the period when the employee uses his right to annual leave. The right to annual leave is the right to rest, which is the constitutional basis, and in the non-working period, the employee must also receive the wage in full. In this sense, it cannot be said that the worker can exercise his right to rest if the worker is paid only the minimum wage during the period of his annual leave. According to the average expedition premium, the employee’s wage rights for the time spent on leave must be provided. At the termination of the employment contract, the employee’s wages for annual leave periods not used must also be paid by calculating the wage added to the expedition premium (Supreme Court 7.H.D. 28.03.2013 Day, 2013 / 1623 E, 2013 / 4798 K.).
Although more studies from the point of view of domestic truck drivers can be proven by all kinds of evidence, if tachometer records are found, the review must be conducted through these records (Supreme Court 9.H.D. 30.01.2013 Day, 2010 / 39450 E, 2013 / 3675 K.). It is possible to prove with all kinds of written evidence or witnesses that the truck driver working in the country works on Week holidays and holidays and general holidays. But according to national traffic rules, it is necessary to prove with convincing evidence that excessive work is being done due to the requirement to drive a certain hour a day (Supreme Court 22.H.D. 24.06.2013 Day, 2012 / 25400 E, 2013 / 15235 K.). In case of submission of tachometer records, the superiority of the records should be recognized by examining the expert expert of the subject (Supreme Court 9.H.D. 13.06.2013 Day, 2011 / 17536 E, 2013 / 18349 K. ; Supreme Court 22. H.D. 21.05.2013 Day, 2013 / 10623 E, 2013 / 11943 K.).
According to the application of the Supreme Court, it is not possible for truck drivers traveling abroad to charge excessive work fees based on mere witness evidence. Witnesses ‘ accounts relate to their own working hours, and it is impossible for them to know their daily working hours precisely because they did not work at the same time as the truck driver who filed the lawsuit (Supreme Court 22. H.D. 02.05.2013 Day, 2012 / 20294 E, 2013 / 9333 K.). On the other hand, International truck drivers must comply with strict traffic laws related to daily truck use, as they determine their shifts themselves (Supreme Court 9.H.D. 25.03.2013 Day, 2013 / 1808 E, 2013 / 9914 K. ; Supreme Court 9.H.D. 23.01.2013 Day, 2010 / 39429 E, 2013 / 2594 K.).
Because truck traffic is prohibited on Week holidays in European countries, it is not possible for truck drivers traveling to European countries to prove the work of a week holiday with only witness statements (Supreme Court 9.H.D. 2011 / 16868 E, 2013 / 17242 K.; Supreme Court 9.H.D. 03.05.2013 Day, 2011 / 7424 E, 2013 / 13347 K.).
Concrete in the file, the court, if it is decided to the acceptance of the plaintiff’s request for overtime, the provision on the basis of the surveyor’s report which are calculated according to the witness statement of the plaintiff’s work more time, but as stated in the above policy, International truck driver can not prove with concrete evidence that the plaintiff’s doing overtime because it is understood that further work should be made when the plaintiff’s decision to refuse the request for the abstract, according to witness statements calculated to be taken under the provision is mistaken.
3-there is also a dispute at the point of whether the plaintiff will receive unpaid fees.
The plaintiff made a request in this direction, claiming that the employee’s last 30-month minimum wage had not been paid, and the defendant defended the denial of the request, citing some records of payment at the employer.
In the expert report based on the provision, the amount earned by adding wages and expedition premiums was determined as a total, and the payments made by the employer under the name of salary and advance were deducted. 2 in the same report. as an option, the plaintiff’s petition for action determined the minimum wage amount entitled to during the period subject to the request due to the minimum wage request, and the amount of the payment made as salary and advance was deducted from this amount.
Although the court established a provision related to the request according to the first option, the rule of commitment to the request was exceeded in the specified calculation method.
The plaintiff claimed only the unpaid minimum wage and the amount was calculated as TL 24,144.60 gross (TL 17,285. 11 net) in the expert report. Only payments made under the name of salary, excluding advances to the employer, should be deducted from the said amount and the provision related to the request should be established in terms of the difference.
4-it is possible to prove with written evidence or witness statements that the truck driver worked on Eid and general holidays while he was abroad. In such studies, evidenced by witness statements, a passport and similar records of entry and exit to the hostel should be examined and a calculation should be made for holidays and general holidays that coincide with the time the worker is abroad (Supreme Court 9.H.D. 11.04.2013 Day, 2011 / 5273 E, 2013 / 11883 K.; Supreme Court 9.H.D. 24.01.2013 Day, 2010 / 39272 E, 2013 / 2778 K.).
The court, the plaintiff’s termination as a truck driver made prior to the average time of international passport records and the number of Entry-Exit Records brought determination, national holidays and public holidays abroad where it is located should be dedicated to the periods of wages, while based on witness accounts, all working on national holidays and public holidays the acceptance of defective if it is required to break it.
F) Result:
A unanimous decision was made on 13.11.2019 to overturn the appeal decision due to the reasons written above, to return the appeal fee received in advance to the relevant person on request.
