According to the Article 41 of Labor Law numbered 4857 whose title is “Overtime wage”, overtime work may be performed for purposes such as the country's interest, the nature of the operation or the need to increase output. Again, in the same article it is stated that works which exceed forty five hours a week defined as overtime work.

As is known, employees who work overtime should be paid higher wages than their normal wages in return for their works. Under the Article 41 of Labor Law numbered 4857 this is stated as “Wages for each hour of overtime shall be remunerated at one and a half times the normal hourly rate.”

Failing to pay overtime wages or paying it at a lower rate than specified in the law could be the subject of a lawsuit about overtime claim on its own, and this act creates a situation where the employees have right to terminate their employment contract for just cause and demanding severance payment accordingly.

Within the framework of the judgment principles, the employee who claims that he/she did overtime work, is obliged to prove his/her claim. On the other hand, the employer is obliged to prove against this claim of the employee that overtime work has not been done or overtime wage has been paid to the employee for the employee's overtime work. In the case where working hours of the employee can not be proved by employer with written evidence such as payrolls, the claim of overtime work can be proved by emplooyee with all kinds of evidence. Witness statements come first among these evidences.

The main problem in calculating the overtime payment is experienced when the employee claims to work for longer periods of overtime which is against payrolls including overtime accrual. For example, despite the payroll that includes 15 hours of overtime accrual and records that the related overtime wages were paid through the bank, the employee can claim that he/she worked 30 hours overtime in that month and witnesses can confirm this claim with their statements. In this case, is it possible to rely on witness statements despite payrolls and bank records?

In the precedent decisions of the Court of Appeals in previous years26; regardless of whether there is a signature on the payrolls or not, if there are bank records showing that the overtime wage is paid and the employee does not specify any mental reservation against the payrolls; it is accepted that the claim of employee about working overtime can only be proved with a written document, and witness statements on this issue can not be relied on. Accordingly, it is decided that overtime payment will not be calculated for the months accrued and paid through the bank, whether the payrolls are signed or not, and the exclusion of the relevant periods from the calculation has been adopted. In other words, even though payrolls are not signed, it has been adopted the opinion that witness statements will not be taken into account against bank records that support payroll.

However, with an additional evaluation in the current decisions of the Court of Appeals, it is seen that there is a distinction according to whether the payrolls are signed or not. In accordance with the recent Court of Appeals decisions; Even if there is an overtime accrual in payrolls and the payment is proved by bank records, perchance the payrolls are not signed, the calculation should be made based on the witness statements, the overtime payments seen on the payrolls and paid through the bank should be deducted from this calculation. For instance, even though there is an accrual of 15 hours overtime in any month payroll of the employment, and it is proven by bank records that this progress payment is paid, if the payroll is unsigned and the claimant is confirmed by the witnesses with stating 30 hours of overtime, overtime wage will be calculated over 30 hours but the overtime payments over 15 hours will be deducted from this account. Some of the current decisions on the subject are given below.

 Download >> Proof Issues Of Unsigned Payrolls Including Overtime Accrual

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