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Labor Law Municipality Appeal Petition

TO THE DEPARTMENT OF LAW OF THE JUDICIARY ( )

To be presented,

ADANA 2nd JOB COURT JUDGMENT

File number:

Appellant (Defendant): Seyhan Municipality

Deputy:

Plaintiff:

Acting:

D. Subject: Submission of our reasoned appeal.

DESCRIPTIONS

The partial acceptance decision of Adana 3rd Labor Civil Court, numbered 20 and 21, is contrary to the procedure and the law and should be reversed. Namely;

1- The part of the local court decision that is related to overtime is contrary to the procedure and the law. Namely; The burden of proof of overwork is on the plaintiff. The explanations of the witness statements made by the plaintiff worker regarding overtime are abstract and do not overlap with each other. For this reason, it should be decided by the court to reject the overtime wage claim, which cannot be proven, but its acceptance was erroneous and required annulment. Supreme Court 9. HD. This situation is also present in the 2012/7577 E. 2014/12267 D decision dated 10.04.2014.

The witnesses heard by the plaintiff are the workers working under the name of Seyhan Municipality at the time. It is not correct to determine that the workers who have worked in the same place, who have a common interest, will receive overtime based on the testimonies they give to each other. It has also been clearly stated in the decision of the General Law Board of the Supreme Court, numbered 9HD 2010/26710 E. 2010/33776 K. It is wrong to accept that overtime will be received in written form with incomplete examination.

It is understood that the witness, who was heard by the plaintiff with the summary, also has a lawsuit filed against the defendant with similar claims. In other words, the plaintiffs and the persons heard as witnesses have filed similar series of lawsuits against the client municipality in the local court, and without taking this matter into account, the decision of the local court that the plaintiff will be paid overtime should be erroneous and overturned.

2- Likewise, the part related to the week holidays and general holidays decided by the local court is against the procedure and the law. It is understood from the payrolls that the client municipality does not work overtime during the week and general holidays. However, the local court decided to evaluate it on the grounds that the signature of the plaintiff was not found in the decision. According to the settled case-law of the Court of Cassation, the burden of proof rests with the plaintiff worker, and the statement of the witnesses heard by the plaintiff that the said works were carried out was taken as basis. The plaintiff and the witnesses have filed a similar lawsuit against the client municipality, and it is clear that the hostile plaintiff will benefit from the witness statements and these statements should be approached with caution, but the local court has ignored this issue and made an erroneous decision and this is the reason for annulment.

This issue is also fixed by the established jurisprudence of the Court of Cassation; The local court's disregarded decision is grounds for annulment.

3- It is against the law and procedure to accept the claim of 929,38 TL with the acceptance of the holiday allowance claimed by the plaintiff, 3.011,20 TL with the acceptance of the request for food aid, and a total of 9.200,57 TL for the additional payment. Namely; Article 41 of TIS, Article 40 of TIS, Article 38 of TIS and Articles of TİS.35 include holiday allowance, education aid, food aid and additional payments. According to the report prepared by the expert, relying only on the statements of the Local Court, based on soft information that we have difficulty in understanding: "The plaintiff claimed that these receivables were not paid, and the burden of proof that the payments were made was decided on the basis that no documents were submitted by the defendant within the scope of the file." The decision rendered based on the statements of the plaintiffs and witnesses who have filed similar lawsuits against the client municipality without any legal justification or basis is nothing more than an abstract claim. It is wrong to calculate the issue of remuneration based only on the claimant's statement. It requires spoiling.

4- Although the local court has ruled that the additional payment receivable has not been paid, this decision is against the procedure and the law and should be reversed. Namely; In the Supreme Court Decision, "It is subject to a 5-year statute of limitations, and the claimant's claim should be calculated between 23/10/2009-5/23/10 by going back 2004 years from the date of the lawsuit, 07/02/2005, while the additional payment receivable is subject to a 10-year statute of limitations. It was wrong to make a written judgment on the grounds that it was wrong, and it required annulment. 9.HD. 2010/16997 E. 2012/26237 K. It is clearly written in the law that the additional payment receivable is subject to a 5-year statute of limitations. The local court's erroneous judgment by ignoring this issue is grounds for annulment.

5- At the same time, lawsuits were filed against the client municipality by the plaintiffs and witnesses in series. Some of the lawsuits filed were examined by the local court and concluded. As a result of our appeal, the serial files were overturned by the Supreme Court for justified reasons.

Below are the decisions of the Supreme Court.

The decision of the local court to accept the expert's report, which was calculated based only on the plaintiff's witness statement, for the calculation of overtime, weekday holidays, national holidays and general holiday receivables is contrary to the procedure and the law. In the decision of the Court of Cassation 7.HD 2016/38092, 2016/21435 K, "even though overtime, national holiday, WEEK HOLIDAY AND GENERAL HOLIDAY wages calculated according to the witness statements heard by the plaintiff in the court are stipulated, overtime work, which is extraordinary work, is week holiday, national It is understood that the witness, who was heard by the plaintiff, who is obliged to prove his allegations of working on public holidays and public holidays, also has a lawsuit filed against the defendant with similar claims. It is clear that the hostile plaintiff witness will benefit from his statement, and his statement should be approached with caution. Since there is no other evidence to prove the claims other than this witness, it cannot be accepted that the plaintiff duly proved the claims of extraordinary work. As such, it has been wrong to accept, instead of rejecting, wage demands for overtime, weekend holidays, national holidays and general holidays. In order for the said week vacation and UBGT remuneration to be calculated, the witness heard by the plaintiff party should not file a similar lawsuit and should not take advantage of himself.

Again, although the plaintiff demanded the collection of his receivables with the highest bank deposit interest, considering the provisions of Law No. 6356 and Law No. 6772, the highest bank business loan interest should be charged to the receivables arising from the Collective Bargaining Agreement, and legal interest should be applied to the additional payment receivables. In this respect, the highest bank business loan interest for the receivables arising from the collective bargaining agreement; While the highest bank deposit interest should be charged on the additional payment receivable, not exceeding the legal interest, it is illegal to directly apply the highest bank deposit interest. This issue was decided without taking into account the local court and should be overturned. 'Court of Appeals 7.HD.2016/38092 M, 2016/21435 K, Supreme Court 7 HD 2016/38098 M, 2016/21441 K, Supreme Court 7.HD 2016/38102 M,2016/21445 K, Supreme Court 7.HD 2016/38103 M,2016/21446 F, Supreme Court 7.HD 2016/38096 M,2016/21439 K, Supreme Court 7.HD 2016/38104 M, 2016/21447 K, Supreme Court 7.HD 2016/38097 E, 2016/21440 K, Supreme Court 7 HD.2016/38101 E, 2016/21444 K, Supreme Court 7.HD 2016/38099 E, 2016/21442 K, Supreme Court 7.HD 2016/38094 E,

2016/21437 K, Supreme Court 7.HD 2016/38095 E, 2016/21438 K, Supreme Court 7.HD 2016/38100 E, 2016/21443 K , Supreme Court 7.HD 2016/38093 E, 2016/21436 K'' in question It will be clear from the decisions of the Supreme Court.

Result and Request: We respectfully submit and request that the decision of the local court regarding the partial acceptance of the case be overturned due to the reasons we have presented and explained above and other reasons to be determined ex officio. 2021

Acting Attorney

About the Author: Lawyer Saim İncekaş

Saim İncekaş is a lawyer registered with Adana Bar Association. He has been working at İncekaş Law Firm, which he founded, based in Adana, since 2016. After completing his law education with a master's degree, he carried out many different studies in this field. He is an expert in areas such as family law, divorce, custody cases, children's rights, criminal cases, commercial disputes, real estate, inheritance and labor law. Saim İncekaş is actively involved not only in the Adana Bar Association, but also in associations and organizations such as the European Lawyers Association, the Union of Turkish Bar Associations and Access to the Right to a Fair Trial. In this way, it takes part in many studies aimed at increasing awareness of the universality of law and confidence in the legal system. Contact Us Now via WhatsApp for an Appointment and Preliminary Meeting

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