Employer’s Representative’s Overtime Receivable

2019, Erdemir&Özmen Avukatlık Ortaklığı

Employer’s Representative’s Overtime Receivable

The article 63 of the Labor Code numbered 4857 determines the weekly working time to be maximum 45 hours. Unless otherwise agreed by the parties, this period of time should apply by equally assigning it to the working days of the week, and the daily working time should not exceed 11 hours.

The article 41 of the Labor Code regulates overtime works and contains the following provision: “Overtime works may be implemented for reasons such as the general interests of the country or the characteristics of the work or the achievement of an increase in the production”. In the text of the article, the reasons prescribed for implementation of overtime works are not listed on a numerus clausus basis; and therefore, it is possible to implement overtime works by indicating different reasons, through analogy. Pursuant to the paragraph 7 of the same article and the article 9 of the Regulation on Overtime Works (“the Regulation”), the laborer should grant the relevant approval in order for the overtime work to be implemented. However, even in case the laborer has granted approval for the overtime work, the period of the overtime work shall not exceed 270 hours on a yearly basis pursuant to the article 41 of the Labor Code.

The overtime works-related provisions of the Labor Code and the Regulation do not make a distinction in respect of the position for which the staff is employed. In other words, the limitations, e.g. white-collar laborer, blue-collar laborer, executive, manager, etc., are not introduced for the staffs who will work overtime.

Pursuant to the definition contained in the article 2 of the Labor Code, the employer’s representative is a person who acts on behalf of the employer and takes charge in the management of the work, the workplace, the business. The employees bearing the title “employer’s representative”, as we address in this newsletter, are in essence the laborers qualified as white-collar employees. Certain white-collar employees, who particularly have the title “employer’s representative” and receives a wage higher than the those of the other employees, are able to determine the working hours personally.

At the point of whether or not a white-collar employee is in the position of the employer’s representative; pursuant to the established jurisprudences of the Supreme Court of Appeals, it is necessary to investigate whether there is another person from whom the employee receives orders at the workplace. In other words, in order for an executive or a manager to be qualified as the employer’s representative, the following are regarded as the criteria: Such executive or manager should be able to determine personally the starting and ending hours of the works and should not receive an order or an instruction in this regard.

In the decision numbered 2017/19098 E., 2018/27658 K. and dated 18.12.2018 as rendered by the 22nd Civil Chamber of the Supreme Court of Appeals, the following verdict was established in respect of the matter:

“The laborer, who asserts that he worked overtime, is obliged to prove this assertion. The rules pertaining to wage payrolls apply at this point as well. A payroll bearing the laborer’s signature is of a conclusive evidence nature until it is proved that it is a forged payroll. In other words, unless it is alleged and proved that it is a forged payroll, it is assumed that the overtime receivable indicated on the signed payroll has been paid.

As regards the proof of overtime work; the workplace records, particularly the documents indicating the starting and ending hours of the works at the workplace, and the workplace internal correspondences are of evidence nature. However, in case the overtime work could not be proved by means of written documentation, this issue should be concluded in the light of the statements submitted by the parties’ witnesses. Apart from that, certain general facts, known by everyone, may also be taken into consideration at this point. It should also be investigated whether the laborer worked overtime, as per the nature and intensity of the work performed actually by the laborer.

In case it is understood from the signed wage payrolls that the overtime wage was paid, it is not possible for the laborer to assert that he did, in fact, more overtime work. However, in case it is found that the laborer has a reservation that he has more overtime receivable, it is possible to prove that he did more work than indicated on the payroll, by means of any evidence. In case of payrolls signed, however, not containing reservation, the laborer should prove that he did more work than indicated on the payroll, by means of written documentation.

However, since such reservation cannot be expected from the laborer in the event that the wage payments in various amounts, containing also the overtime wage accruals, are made every month through the channel of bank, though the laborer did not have a payroll signed; it is possible to prove, through any evidence, that the laborer worked overtime more than for what he was paid. 

Considering collectively the fact that the plaintiff is in the status of personnel outside the scope and that his wage at the workplace is determined to be 4.67 folds of the minimum wage, the local court has rejected the claim for the overtime wage receivable on the ground that there is no instruction given by a board member or an executive of the company for working overtime and that the plaintiff determined his working hours by himself and that he worked in the position of senior executive and that his wage was determined by taking into consideration that he would possibly work overtime at the workplace.

In the present dispute, while the overtime receivable should have been calculated by considering collectively the witnesses’ statements, the entire scope of the file and the plaintiff’s declarations reflected into the experts’ report in the file numbered 2014/822 E. of the … 6th Labor Court for the period not punched in and out, by recognizing these records in the period punched in and out, since it is understood that there are periods punched in and out in the records pertaining to the plaintiff’s work starting and ending hours though the witnesses stated that the plaintiff is in the position of personnel outside the scope and that the plaintiff is not obliged to punch in and out and since it is understood that the plaintiff was assigned as the human resources chief in the 8th month of 2013 and that the plaintiff is not in a position enabling him to determine his working hours as there is a human resources director and there are company officials in his upper staff position; the local court has rejected erroneously the claim for the overtime wage receivable on the grounds indicated in its decision.”

In a recent decision rendered by the Supreme Court of Appeals, a reference is made to the established decisions rendered previously by the Supreme Court. Accordingly, an employee, who has the title “the employer’s representative” and is in the position of senior executive at the workplace, shall not additionally become entitled to an overtime wage, in the event that he has been paid the wage required by his tasks and responsibilities. It should also be investigated whether or not such personnel in the position of the employer’s representative and senior executive has been given an instruction by an executive or a board member of the company for him to work overtime. In case such personnel serving at the workplace by receiving a high wage has not been given an explicit instruction by the employer for working overtime, it is adopted that he shall not claim overtime wage due to the working hours determined by him at the point of the properly fulfillment of his task.

In conclusion:

If there is another executive and company partner/shareholder occupying a higher position at a workplace where the executive, who has title “the employer’s representative” serves; it will not, in principle, be possible for the executive to determine his working arrangement by himself. Therefore, it is adopted that the executive shall become entitled to overtime wage.

While determining the overtime receivable for the executive who has the title “the employer’s representative”, it should also be looked into whether or not the executive has been given an explicit instruction by the other executives for working overtime and whether or not the executive is able to determine his own working arrangement as per the salary and job descriptions pertaining to the executive.

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