T.C. SUPREME
9.law office
Main: 2015/7967
Decision: 2017/2059
Date of Decision: 16.02.2017
CASE OF WORKERS’ RECEIVABLES – THE RELEASE AGREEMENT HAS THE PLAINTIFF’S SIGNATURE – THE PLAINTIFF HAS NOT DENIED THE SIGNATURE – THE WILL-CRIPPLING SITUATIONS ARE NOT PRESENT IN A CONCRETE EVENT – DUE TO THE REJECTION OF THE CASE IN TERMS OF RECEIVABLES CONTAINED IN THE RELEASE AGREEMENT
Summary: File offered by the defendant, the plaintiff is required and authenticated by the signature of the signature of the plaintiff are not in denial, fraud, threat and which cannot be proved by the plaintiff through ikrah sign that more work Fee Fee Fee receivables in terms of general holiday and weekend do not conflict with the defense of the defendant where, after the termination of an employment contract signed and for all these reasons, the current release agreement (disclaimer) more work, public holidays and the decision must be given of the denial of claims for the cost of a vacation week.
(6098 P. K. m. 132, 420) (818 Pp. K. m. 21, 23, 24, 25, 26, 27, 28, 29, 30, 31) (4857 P. K. m. 19) (YHGK. 21.10.2009 T. 2009/9-396 E. 2009/441 K.) (Y HGK. 27.01.2010 T. 2009/9-586 E. 2010/31 K.) (9. HD. 15.10.2010 T. E. 2008/41165 2010/29240 K.) (9. HD. 05.11.2010 T. E. 2008/37441 2010/31943 K.) (9. HD. 26.10.2010 T. E. 2009/27121 2010/30468 K.) (9. HD. 04.11.2010 T. E. 2008/37372 2010/31566 K.) (9. HD. 24.06.2010 T. E. 2008/33748 2010/20389 K.) (9. HD. 27.06.2008 T. E. 2007/23861 2008/17735 K.) (9. HD. 24.06.2010 T. 2008/33507 E. 2010/20380 K.)
Lawsuit: The plaintiff has requested that it be decided whether they will receive severance pay, notice compensation and overtime pay, national holiday and general holiday pay, week holiday pay and leave pay.
The local court has decided to partially accept the case.
Although the defendant was appealed by his lawyer during the sentencing period, after hearing the report prepared by the Examining Judge for the case file, the file was examined, discussed and considered as necessary:
A) Summary of the Plaintiff’s Request:
The plaintiff’s attorney the defendant that belongs to his client as a conductor in a public bus 15.04.1999-working between the dates 16.04.2006, citing that of an employment contract by an employer’s unfair was dissolved, with overtime pay, severance pay, general holiday fee, permit fee and the annual vacation the week of receivables from the defendant the cost of his education he wanted.
B) Summary of Respondent’s Response:
The defendant’s counsel, that does not reflect the truth of plaintiff’s allegations, the plaintiff’s 25.06.2001-31.05.2004 dates between client working for the company after that date the absence of the work, that has been released on 31.05.2004 his client, despite the acquittal, and proposed that it be unfair to ascribe false statements and claims paid claims, arguing that it is without legal basis, has asked for a dismissal.
C) Summary of the Decision of the Local Court:
Based on the evidence collected and the expert report, the court decided to partially accept the case on the grounds that the defendant was unfair in terminating the employment contract.
D) Appeal:
The decision was appealed by the defendant’s deputy.
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 that fall outside the scope of the following paragraphs are not in place.
2- There is a dispute between the parties regarding the validity of the Hebrew decipherment.
In Turkish law, Turkish code of obligations No. 6098 into force on 01.07.2012 release agreement are set forth in and adopted in Article 132 of the law “debt birth of a particular shape by law or by the parties to the transaction, the debt even though she was restrained, due to The Shape of the side they can be eliminated completely or partially without the release agreement” in the form of the rule have been given.
Termination of the debt through release in the business relationship is stipulated in Article 420 of the Turkish Code of Obligations No. 6098.
According to the aforementioned provision,
the written release agreement related to the receipt of the employee from the employer,
as of the date of release, a period of at least one month has elapsed since the expiration of the contract,
clearly stating the type and amount of the receivable subject to release,
it is necessary that the payment be made through the bank, free of charge and in comparison with the right amount. Hebrew conventions or hebrews that do not carry these elements are definitely invalid. Release agreements or other payment documents containing a release statement that do not contain the fact that the right has been paid in the actual amount are subject to receipt, limited to the amount they contain. Even in this case, payments must be made through the bank.
article 420 of the Turkish Code of Obligations No. 6098 states that release agreements concluded within one month after the termination of the employment contract will not be valid. In the same article, it is stipulated that the release agreements (ivazli release) subject to the condition of payment of part of the receivable will be valid only if the payment was made through the bank. article 19 of the Labor Code No. 4857 provides for a one-month period of entitlement reduction in respect of appeal against termination, and within one month after termination, the employee has the right to file a case for return to work. At this point, a one-month period following termination is important for determining whether the employee will return to his/her previous job. In that case, it is also necessary to reduce the possible pressure of the employer in the period of one month following the termination in order to ensure job security. Even for terminations based on valid and justified reason claims, a one-month period following termination must be waited for the Hebrew to be issued. Although a one-month waiting period means that the payment of some of the employee’s labor receivables will be delayed for a month in terms of partial release, it is basically a situation for the benefit of the employee. Let’s note right away that the one-month waiting period is related to the time of issuance of release agreements and is not a situation related to execution. In other words, the date of payment of the employee’s rights, such as severance pay, notice compensation and leave pay, which become exempt with termination, is not postponed for a month.
In the mentioned article of the Turkish Code of Obligations No. 6098, the imposition of the obligation to make payments to be made by the employer through the bank is effective on the result at the point of validity of the Hebrew. However, in payments made by non-bank means, the debt is terminated in whole or in part through performance instead of release.
The aforementioned legal act provides for restrictions for the benefit of the worker only for those cases when the employee is a creditor. Expenses for training of workers on the employer penalty and compensation for damage in the applications requested again and even in cases where the worker is owed to the employer under the provisions of unjust enrichment, the parties, without any restriction, workers discharge their debts through may terminate.
The provisions of the second and third paragraphs of the article referred to shall apply to all rights arising from the service contract, including compensation and receivables that may be requested by those who lack support and other relatives of the worker.
The existence of legal conditions should be sought for the release agreements issued after 01.07.2012, when the Turkish Code of Obligations No. 6098 entered into force. However, the issue of the validity of the Hebrew signed during the period when the Code of Obligations No. 6098 is not in force should be evaluated within the framework of the relevant principles of our Department. The fact that the Hebrew was issued within a month after the termination and payments were not made through a bank does not lead to invalidity for hebrew contracts issued before 01.07.2012.
Dec Issue of invalidity in respect of release agreements concluded between the employee and the employer prior to the entry into force of the Turkish Code of Obligations for the termination of the employer’s debts should be evaluated within the following principles:
a) Within the framework of the well-established case law of our department, the release agreements issued while the employment relationship is ongoing are invalid.During this period, the employee is completely dependent on the employer and, despite the provisions of the labor guarantee, it is possible that he will turn to signing a release agreement against his will in order to ensure the continuation of the employment relationship or to obtain some labor receivables as soon as possible, and this is the practice of our Department that has gained stability (Supreme Court 9. HD. 15.10.2010 day, 2008/41165 E, 2010/29240 K.).
b) Hebrew cannot be valued if it does not contain a date and it is not clear from its content that it was edited after the date of termination (Supreme Court 9. HD. 5.11.2010 day, 2008/37441 E, 2010/31943 K).
c) Whether the Hebrew is valid or not The Law No. 818 on Obligations in force until 01.07.2012 regulating willful mischief 23-31. it should also be evaluated in terms of its substances. If one of the parties makes a fundamental mistake during the execution of the release agreement and encounters deception or intimidation of the other party or a third party, the release will cannot be mentioned.
On the other hand, the excessive use (gabin) criterion mentioned in Article 21 of the Code of Obligations No. 818 should also be evaluated at the point of validity of release agreements.
Cases of violation of the will in Hebrew must be brought forward within the one-year period of reduction of rights provided for in Article 31 of the Code of Obligations No. 818 (Supreme Court 9. HD. 26.10.2010 day, 2009/27121 E, 2010/30468 K). However, the period of one year does not work during the continuation of the business relationship in terms of Hebrew letters of a printed nature received when entering into business.
d) The discharge agreement is a way to terminate a debt whose existence is undisputed, but it is not possible to terminate debts whose existence is doubtful or disputed through a release. Therefore, it is inconceivable that a debt that the worker is not claimed to be entitled to will be the subject of submission. It should be recognized that the release agreements that contradict the defense and other records of the employer are invalid (Supreme Court 9. HD. 4.11.2010 day 2008/37372 E, 2010/31566 K).
e) In the case of release agreements containing an amount, if the receivable is fully paid, the debt will be terminated by performance. However, in cases of partial payment, the presentation is not valued in the established case law of our Apartment, and it is accepted that the payment made is subject to receipt (Supreme Court 9. HD 21.10.2010 day 2008/40992 E, 2010/39123 K.). The fact that the Hebrew containing the amount was taken while working does not eliminate the receipt effect (Supreme Court 9. HD. 24.6.2010 day 2008/33748 E, 2010/20389 K.).
f) In the case of release agreements that do not contain amounts, the validity issue should be carefully considered. A will corruption audit should be conducted and solutions should be sought regarding the validity of the Hebrew according to the characteristics of the concrete event (Supreme Court 9. HD. 27.06.2008 day 2007/23861 E, 2008/17735 K.). In the Hebrew law, which is issued after the termination and in which the items of receivables are counted one by one, the release must be considered valid unless the will is asserted and proven in cases of termination (Supreme Court HGK. 21.10.2009 day, 2009/396 E, 2009/441 K).
g) Again, the fact that the employee has a passionate record that he reserves his legal rights in Hebrew indicates that there is no Hebrew will (Supreme Court 9. HD. 4.11.2010 day 2008/40032 E, 2010/31666 K).
h) In terms of labor receivables that are not included in the Hebrew, it cannot be said that the debt has expired. The existence of a conflict with the defense in terms of some of the labor receivables contained in the Hebrew does not completely invalidate the Hebrew. In terms of the parts that are not in conflict with the defense, the will of release should be valued (Supreme Court 9. HD. 24.6.2010 day, 2008/33597 E, 2010/20380 K). In another expression, the divisible effect of Hebrew can be mentioned in such cases. A Hebrew is considered to be a receipt provision in terms of some receivables, while some labor rights and receivables may be invalid due to contradiction. In terms of items that do not contradict the same Hebrew and do not contain amounts, the debt can be considered terminated by release.
The defense of Hebrew can be put forward at any stage of the trial by being an appeal that can eliminate the right (Supreme Court HGK. 27.1.2010 day 2009/9-586 E, 2010/31 K.; Supreme Court 9. HD. 13.7.2010 day, 2008/33764 E, 2010/23201 K.).
A concrete dispute, offered by the defendant to file, authenticated by the signature of the plaintiff and the plaintiff’s signature is required and you are not in denial, fraud, threat and which cannot be proved by the plaintiff through ikrah sign that more work Fee Fee Fee receivables in terms of general holiday and weekend not in conflict with the defense of the defendant, and after the termination of an employment contract signed on 04/06/2004 for all these reasons, the current release agreement (disclaimer) more work, public holidays and the denial of claims decision should be made when the cost of a vacation week, it is erroneous to make a decision in writing with the acceptance that the Hebrew agreement (Hebrew) is invalid on grounds that are not in place.
3- The second dispute between the parties is collected at the point of whether the reclamation dec by the plaintiff has been duly carried out.
From the scope of the file, it is understood that the plaintiff’s deputy corrected his case with the reclamation petition dated 25/05/2009 judge remittance, increased the amount of receivables in accordance with the expert report and deposited the reclamation fee on the same day, the court was taken into consideration and the verdict was established.
In the petition, the plaintiff’s attorney requested 1.000 TL severance pay, 1.000 TL notice compensation, 3.000 TL overtime pay, 1.000 TL general holiday pay, 1.000 TL week holiday fee and 1.000 TL leave fee. In the correction petition written above, the deputy plaintiff corrected his case by stating that “We are correcting the case we filed over 8.000 TL as 32.000 TL …” without specifying how much he increased the amount of receivables he requested. It is clear that a correction made in this way is not in accordance with HUMK No. 1086 and HMK No. 6100. According to this correction, which is made without specifying which receivables have been increased by what amount, it is not possible to settle the receivables. What needs to be done by the court is to give the plaintiff’s attorney time to explain the reclamation petition in question, to clearly state which receivable he has increased by what amount, and to make a decision based on the result. It is wrong for the court to impose a verdict by taking into account this correctional evil eye for work that has not been done properly.
4- It is also not thought that not specifying in the paragraph of the provision whether the amounts imposed are “net” or “gross” will create hesitation in the execution of the provision, HMK 297. it is contrary to its substance.
F) THE RESULT:
It was decided unanimously on 16.02.2017 that the appealed decision should be OVERTURNED for the reasons written above, and the appeal fee received in advance should be returned to the interested party upon request.