Events
The applicant’s employment contract has been terminated unilaterally by the employer. The employer has paid the severance pay, the notice compensation and the annual leave that turns into a fee to the applicant.
The applicant has filed a compensation claim against the employer in the employment tribunal. In the petition, the lawsuit stated that the severance and notice payments and the annual leave that turned into wages were paid incompletely, and the overtime pay was never paid.
The employment tribunal, which reached the conclusion that the applicant worked 260 hours overtime per year based on the testimonies of the witnesses it heard and the expert report, accepted the case in terms of overtime pay. 41 of the labor court Law No. 4758. the seventh paragraph of article relating to law in the business with more work and more time working with regulation (Regulation) in effect on the date of the second paragraph by considering the state of the overtime overtime approval with regard to the applicant’s employer must have reached the conclusion that at the beginning of each year, and the employers at the beginning of each year after the first year because it was not able to prove that the applicant has received approval for more work has accepted a wage that must be paid. In turn, the 9th district court of justice Regulation. on 25/8/2017, the second paragraph of the article stated that there was no requirement for approval to be obtained at the beginning of each year based on the changing situation, that the approval given by the applicant when signing the service agreement was valid – unless he withdrew it, and the employment court dismissed the case by lifting its decision.
Count
The applicant claimed that his right of ownership had been violated due to non-payment of overtime pay.
Evaluation of the Court
41 of Law No. 4758 on the decisions of courts of instance. in its article, the provision is made that the approval of the employee must be obtained in order to work with extra hours. Article 41 of the Law No. 4758. 9 of the Regulation issued on the basis of its article. who needs to study more in the second paragraph of the article for approval by the employer, in writing, from the workers at the beginning of each year that should be taken while the amendment into force on 25/8/2017 arranged at the beginning of each year for approval requirement has been removed during the construction of the sufficient approval to be granted an employment contract has been made.
Article 41 of the Law No. 4758. in the seventh paragraph of its article and in the 9th paragraph of the Regulation. it is seen that the approval requirement contained in both versions of the article is intended for overworking. An arrangement that may mean that approval for overtime work will also be considered a waiver of overtime pay is not included in these rules.
Although there was no clarity in the decision of the district court of justice, it was seen that the applicant’s approval in the service contract was based on the acceptance that there was no charge other than the original fee for overwork. Article 35 of the Constitution. as a rule, the right of ownership guaranteed in the article does not prohibit the owner from waiving overtime pay. Therefore, based on the fact that the employee has accepted in the employment contract that the compensation for his overwork is included in the actual wage, the overwork fee should not be ruled in his favor, as a rule, in Article 35 of the Constitution. it does not violate the article. However, in cases where the extra work of the employee is not in accordance with the law, it cannot be inferred that the excess work fee is waived based on the presence of prior consent. Because in order for the waiver to be valid, the waiver will must be clear and the consequences are reasonably foreseeable from the point of view of the person, as well as minimum procedural guarantees must be provided, as well as there is no superior public interest that makes the waiver of the right legitimate.
On the basis of the authority granted by the law, the legislating and administrative bodies have sent a number of mandatory provisions in order to protect the interests of the employee who is in a relatively weak position in front of the employer. In this regard, Article 41 of the Law No. 4758. in the seventh paragraph of its article, it is strictly forbidden to work more than without the consent of the worker. In addition, with the secondary regulations issued, approval for overwork is required to be obtained at the beginning of each year and in writing. The provision of the legislation providing for the obligation to obtain approval at the beginning of each year remained in force until 25/8/2017. Accordingly, taking into account the legislation before 25/8/2017, it was understood that the employee’s overwork without his approval at the beginning of the year would constitute a violation of the mandatory rules.
In a concrete case, the applicant must obtain approval at the beginning of each year during the period when -1/4/2008-29/5/2015 between the dates- it has been decommissioned. Therefore, according to the legislation in force during the aforementioned period, the applicant’s further studies outside the first year constituted a violation of the mandatory provisions. Even if it is accepted that the applicant consented to overwork without charge, it cannot be said that this consent also includes overwork performed in violation of the mandatory provisions. The waiver of overtime pay by an overworked person in violation of the mandatory provisions contradicts the superior public benefit in protecting the interests of workers.
The approach in the decision of the district court of justice ignores the fact that there is an approval requirement according to the legislation in force during the period when the applicant is overworked. the legislation, which entered into force on 25/8/2017, considers the approval given when signing an employment contract to be sufficient for overwork, but does not legalize overwork performed without approval at the beginning of each year in the past. This interpretation of the district court of justice is not predictable, nor does it take into account the fact that accepting a waiver of rights arising from working in violation of the mandatory provisions of labor law contradicts the public interest.
As a result, it was concluded that the interpretation of the district court of justice that the applicant’s waiver of the employment contract also covers the rights obtained in exchange for working in violation of the mandatory provisions of the legislation is not foreseeable. This assessment of the district court of justice, which was a serious mistake, led to the fact that the applicant was subjected to an immeasurable burden and a serious imbalance between the interests of the employer and the employee, therefore, the state was decriminalized in Article 35 of the Constitution. it resulted in a violation of the positive obligations stipulated by the article.
The Constitutional Court has decided that the right to property has been violated on the grounds described.
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