Recent development
The Constitutional Court’s decision numbered 2019/1450 and dated 22 February 2022 was published in the Official Gazette dated 5 April 2022 and numbered 31800. With the decision, the link between overtime salary and property right was evaluated and a precedent was established on this matter.
What does the decision say?
In the dispute subject to the application, it was decided in the employment agreement that the employee accepted to work overtime within the legal limits, and the overtime salary was included in the employee’s salary. Following the termination of the employment agreement, the employee claimed from the employer certain receivables along with unpaid overtime salary. The first instance court partially accepted the claims regarding overtime salary. The Regional Court of Appeals stated that it should be evaluated as to whether employers are required to obtain consent for overtime work every year and stated that the practice was to obtain consent each year until the legislation was amended on 25 August 2017. Therefore, the Regional Court of Appeals stated that unless the employees withdraw their consent, it will be accepted that the employees consented to work overtime; in this regard, overtime salary is included in the employee’s salary and the employee would not be entitled to a separate overtime salary. The employee claimed that the employer did not pay the overtime salary and therefore his property right was violated.
Pursuant to the Constitutional Court’s decision:
- Providing consent to perform overtime work does not mean a waiver from the overtime salary.
- It is legal to determine that overtime salary is included in the salary. Waiving overtime salary does not violate the property right.
- Even if an employee gives consent to perform overtime work without demanding overtime salary, overtime work performed in violation to the mandatory provisions cannot be accepted within the scope of this consent.
- As of 25 August 2017, it is sufficient to obtain the consent for overtime work only once.
- Since the overtime works performed subject to the individual application took place before 25 August 2017, the employee’s consent to perform overtime work should have been obtained each year. The consent obtained as part of the employment agreement is accepted as valid only for the first year; and in this regard, not obtaining a consent for overtime work again and not paying overtime salary for the overtime work after the first year caused violation of the property right.
Conclusion
The effects of this decision given by the Constitutional Court should be followed and taken into account by the employers in case of legal disputes, especially for the disputes related prior to 2017.
