• Arzu Ozgen

HOW CAN THE EMPLOYER PROVE ITS JUSTICE IN LABOR LAWSUITS IN TURKEY?


Employer and employee relations are regulated under the Labor Law numbered 4857 in Turkey. The basis of the Labor Law is job security provisions. The legislator has introduced the job security provisions in order not to terminate employment contracts with the arbitrariness of the employer, who is the strong party in the contracts between the unequal employee and the employer, and to prevent the victimization of the weak party employee frequently.


However despite the Labor Law, the worker is always considered the weak party. This situation is open to abuse by the employee. For this reason, it is very important to prove the claim in trial.


The burden of proof is the problem of who should prove the facts and claims put forward in a lawsuit. The burden of proof is always on the person who brings a claim in a dispute. Of the party cannot prove a fact that needs to be proved by himself, the other party and the court cannot force him to prove it. On the contrary, if the party that has the burden of proof but fails to fulfill this is the plaintiff, it is deemed to have failed to prove its case and the case is rejected for this reason.


In practice, the employee generally sues with the claim that the labor contract has been terminated unjustly and that his legal receivables have not been paid by employer at the duration and the termination of the contract. It is the employer who must prove that the labor contract has been terminated for just cause and that the employee has also received his legal receivables during the contract and at the end.


In practice, the employee generally sues with the claim that the labor contract has been terminated unjustly or his legal receivables have not been paid by employer at the duration or at the termination of the contract. It is the employer who must prove that the labor contract has been terminated for just cause and that the employee has also received his legal receivables during the contract or at the end.


According to the Turkish Code of Civil Procedure and Labor Law, both parties must prove their claims with written documents in court. However, it is accepted by the court especially for overtime issue that the employer always has the opportunity to unilaterally draw up a report as of his position. Within the framework of the principles of judgment, the employee who claims his overtime is obliged to prove his claim. On the other hand, the employer is obliged to prove that the employee did not work overtime or if he worked overtime, his wages were paid. If the employee cannot be proved by the employer with written evidence such as payroll the claim of overtime can be proved by employee with all kinds of evidence and witness statements come first among these evidences. For this reason, the employer must prove with written documents against the verbal statement of the employee in the court.



In this context, we need to closely examine the documents on three main headings that the employer has to submit to the court in order to prove its justification according to employee’s general claims in labor cases in Turkey;


1. Employment Contract & Personnel Regulation & Job Description


According to the Article 8 of the Labor Law, contracts with a term of more than one year must be writing. In the contract the provisions regarding issues such as employee-employer information, duration of the contract, probationary period, salary information, premium conditions, overtime status, termination of the contract and inspection of the employee should be clear and precise.


In the job description document, the details of the work to be done, the duties and responsibilities of the employee, to whom the employee will report, should be written in detail. It is very important to notify the employees of their duties and responsibilities in writing with all details, to record them in a way, in order to prevent possible disputes during the business relationship. The job description is also accepted as an annex to the employment contract.


Failure to perform or incomplete work specified in the job description is on justifiable reasons for termination of the employment contract by the employer. Giving the employee different duties other than the job description may also be a justifiable reason for termination of the employment contract by the employee. For this reason, it is useful to have it in written and signed by the employee.


The Personnel Regulation is also an annex to the employment contract. General working conditions such as employment conditions, working hours, workplace rules, leave conditions, absence from work due to illness, security etc. are regulated. According to the Article 22 of Labor Law, changes in the employment contract and working conditions are subject to the written consent of the employee. Therefore it is imperative that the Personnel Regulation specifically includes how to change it. For this reason, the Personnel Regulation must also signed by the employee.


2. Payroll & Overtime Working Consent & Minutes.


During the employment contract, the employer must issue a payroll regarding the wages paid to the employee. Bank receipts and payrolls must be shown in court, especially in the proof of salary payments. In this context it is important before the court that the payroll is signed by the employee. In the payrolls an accrual regarding overtime should also be made. The employer cannot defend that overtime payments are made without an overtime accrual on the payroll.


The minutes are important for proof in court to record the negativities experienced in the workplace and the behavior of the worker against his duty. In the preparation of the minutes, the event must be explained clearly, the date and time of the incident must be clearly written, and the signatures of those involved and two witnesses are required. However, it should not be forgotten that the judge will want to listen to the witness who signed the minutes in court.

3. Defense & Termination & Waiver and Release


The termination of the employment contract must be in written. Verbal terminations are invalid in accordance with the Labor Law. The reason for termination should be clearly stated. The employer may terminate the contract for justified or valid reasons listed in the Labor Law. Absence without reason, fight between employees are some examples of justified reasons of the employer to terminate the contract. The employer may also terminate the contract for reasons arising from the workplace itself such as the closing of the work place or insufficient performance of the employee. These reasons are called “valid reasons”. Before the employment contract is terminated for valid reason, the employer must receive the employee’s written defense. Termination transactions made without a defense shall be deemed invalid according to the Article 18 of the Labor Law.


In the resignation of the employee, the reason for resignation should be written. It should also be written that the employee resigned voluntarily.


In the termination of the contract, the employer is obliged to pay the employee’s legal receivables to the employee. Legal receivables include severance payment, notice payment, wages, and annual leave payment depending on the event. In return for these payments, the employer receives a release and waiver from the employee. It is important before the court that the release and the waiver to be obtained from the employee are written and signed in handwriting of the employee after the termination date of the employment contract. It is unacceptable for the employee to file a lawsuit against the employer with the release and waiver given in accordance with the law.


As a result, as we mentioned above, since the employer is in a stronger position than the employee, the employee always starts the case 1-0 ahead before the court. However, since this attitude is open to abuse by the employee, the employer who work in accordance with labor law always have the right to tie or win the case if they have the documents listed above.


-Adv. Arzu Özgen

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