If the Worker is Not Allowed to Use the ‘Breast-feeding Permission’, She Can Ask for a Breast-feeding Permission Fee to be Increased – Supreme Court Decision

T.C.
SUPREME
22. law office
MAIN NUMBER: 2015/16933
DECISION NO: 2017/19050
DECISION DATE: 25.9.2017

>>IF THE WOMAN WORKER GIVING BIRTH IS NOT ALLOWED TO USE THE “MILK LEAVE”, SHE CAN REQUEST A 50% INCREASE IN THE MILK LEAVE FEE

It was understood that the decision made as a result of the case between the parties was requested by the plaintiff’s attorney to examine the appeal and that the appeal request was in due Decency. After hearing the report prepared by the Examination Judge for the case file, the file was examined, discussed and considered as necessary:

decision

Attorney for plaintiff; the defendant’s branch in the workplace working as a sales manager, your client, business hours 09:00-18:00, although it is 08:00-08:30 come to workplace to 20:30 and worked late hours, overtime work is paid for, whether or also during his period of birth, milk for the permission of the employer 12:30-13:30, despite the lunch hour, 12:00-14:30, it was determined that 3 or 4 times due to corporate meetings and appointments outside the customer by specifying whether to use milk and dairy permission permit fee costs from the defendant further work is asked to decide on the collection.

The defendant’s attorney; The plaintiff works with a salary plus a bonus, is included in the salary of overwork, uses 9 months of milk leave other than 3 months of maternity leave, there is no regulation that the fee will be paid if it is not used, for this reason, he requested the dismissal of the case.

The court itself is determined by the plaintiff’s working hours 270 hours and more work should be recognized is limited to the cost of the plaintiff’s salary + bonus structure, according to his work and the results of his work, according to variable premiums received from the employer, in excess of 270 hours of work that it is doing to the file not being able to identify any document or statement that is reflected, also a plaintiff workers ‘ milk with the statement that can’t consent to this fee, if requested, is still in the Supreme Court 9. According to the decision of the Legal Department dated 01/02/2012, 2010/33549-2012/2569 main decision, there is no rule in the labor law that an additional fee will be paid to the employee if the milk permit is not granted, the sanction of which is 104 of the Labor Law. it was decided to dismiss the case on the grounds that the matter of imposing a fine on the employer was regulated in the article and that the plaintiff could not charge a fee in return, even if the milk permit was not granted to the plaintiff for this reason.

The decision was appealed by the plaintiff’s attorney.

Reason:

1- ) According to the articles in the file, the evidence collected and the legally necessary reasons on which the decision is based, the plaintiff’s appeals that fall outside the scope of the following paragraph are not in place.

2- ) There is a dispute between the parties on the point of whether the Decedent is entitled to receive a milk permit.
74/7 of the Labor Law No. 4857. in the article“ “Women workers are allowed a total of one and a half hours of milk a day to breastfeed their children under the age of one year. The worker himself determines between which hours this time will be used and Decimated by how many. This period is counted from the daily working time.” there is an arrangement in the form.

104 of the Law No. 4857. in the article, the regulation that a fine will be applied if the employer acts contrary to the provision of this article on the regulation of work has also been introduced, and the use of a milk permit has been secured by linking it to an administrative sanction.
From our previous opinion regarding the milk permit, our Department decided on 13.06.2016 tr 2015/12878 Esas 2016/17527 with the decision numbered ”69/3 of the Labor Law No. 4857. in the paragraph “Night work of workers cannot exceed seven and a half hours, according to the provision, there is no legal regulation that night work will be paid over the increased wage, but this situation has been clarified by the established case law of our apartment and it has been accepted that the overtime work done at night should be paid over the increased wage. It has been assessed that a similar interpretation of the milk permit issue is more appropriate for fairness and … and the purpose of the legislator.

In the mentioned decision, exactly;
“In accordance with the law, women workers are allowed to breastfeed their children for 1.5 hours a day ( otherwise, but in favor of the employee, as well as time can be arranged between the parties), milk permission is not a situation that is at the initiative of the employer, but 74/7 of the Labor Law No. 4857. Dec. in accordance with paragraph 50 of the Constitution, it is stipulated that the employee will determine between which hours this period will be used and divided by how many, and if the employee should use a milk permit but this permit is not used, the calculation should be made on the basis of a 50% increase in wages by determining the unused period, Dec. 50/2. it was decided to overturn the provision on the grounds that it would be more in line with the spirit of the law No. 4857 by adopting its article and purposeful interpretation.”
In the concrete dispute, the period during which the plaintiff could not use the milk permit should be determined and the calculation should be made based on the 50% increased fee, while the rejection of the request with a written justification was unjustified and required distortion.

CONCLUSION: It was unanimously decided on 25.09.2017 to OVERTURN the appealed decision for the reasons written above and to return the appeal fee received in advance to the relevant person if requested.

T.C.
SUPREME
9. law office
MAIN NUMBER: 2017/4543
DECISION NO: 2017/7375
DECISION DATE: 27.4.2017

The plaintiff requested that it be decided to pay severance pay, notice compensation, national holiday and general holiday pay, leave pay, overtime pay, eve days work pay and milk leave wages.
The local court has decided to partially accept the case.
Although the parties were appealed by their lawyers during the sentencing period, the report prepared by the Examination Judge for the case file was examined after the hearing, the file was discussed and considered as necessary:

decision

The plaintiff’s attorney said that the plaintiff worked as a Human Resources Training Officer at the defendant’s workplace from 01/05/2008 until the termination date of the employment contract, that the employer notified the plaintiff on 15/04/2013 that the employment contract was terminated in accordance with Article 18 of the Law, that the dismissal form was signed by the plaintiff without even taking a defense, that the plaintiff paid the notice and rights that he discovered on 16/04/2013 from the employer what you want, instead of paying these rights, the employer should issue a warning against the plaintiff and inform him of his excuse for absenteeism, otherwise the employment contract will be terminated in accordance with Article 25 of the Labor Code, the last net fee he received is 2,415.00 TL. stating that the plaintiff who gave birth during the working period was prevented by the employer from using the milk leave, his wages for this work were not paid, he worked from 07:45 to 23:30 in the morning, his annual leave was not used, his wages for working on national holidays and general holidays and Eve days were not paid, he requested that a decision be made to collect from the defendant the annual paid leave, overtime, holiday work and milk leave with notice and severance pay.

Counsel for the defendant, the plaintiff’s termination of employment by the company has been any work of her own volition that the rescission of a contract with the health problems based on the medical records taken from 15/04/2013 is expected to start on it when I searched that fact that you can’t work due to the traffic that is not a justification reported due to the absence of the minutes held on 16/04/2013 the plaintiff came to work for reasons of Health reported that the output process is performed at the time I was asked this statement to be taken as written, in a statement the workplace and refrain from being left, right to stop the loss of an output operation is not carried out, the complainant requested a cease and desist by drawing with explanation or justification of what is being submit a report within the same day the plaintiff’s protest has drawn on 16/04/2013 business involves the dissolution of a valid reason to conclude that the notary public … 13 12459, journal entry number, a pink slip on 18/04/2013 that had been communicated, Beyoglu be drawn on 26/04/2013 35 of the notary public, the response has been drawn of a pink slip, whether it is due to be entitled to compensation for the withdrawal of your employment, the termination occurs if the right conditions, annual leave is used, the working conditions that have not been altered, whether the aggravated conditions, colleagues claim that terms and conditions have been made in similar improvements in the way that the permissions were denominated in milk, more if study personnel attendance records that are incompatible with the claims of the claimant from time to time and which correspond to the first year in question, or let the overtime was paid for itself as the return of material, he argued that the case should be dismissed.

At the end of the trial conducted by the court, the plaintiff’s date of dismissal from work is 15/04/2013, the reason for leaving work is 18 of the Law No. 4857.item as written, the name and signature of Human Resources approval of your employment by the plaintiff on notice of the dissolution of the later 16/04/2013 because it is not effective where the result of employment by the employer terminated on 15/04/2013, the permissions are entitled to annual leave severance pay when they use 6 of the convention business. in the article noted that more work is included in the cost of Personnel Records and records of input and output are presented where more work, a written document for the claim of the plaintiff that he did not calculating overtime work in excess of 270 hours per year in the absence of the plaintiff, however, according to the records, working on general holidays, 857 wholesale on a fee basis in law or edit permissions will be given milk that would not be paid, for this reason, since it is not possible to cover it as a fee, it was decided to collect severance and notification indemnities and vacation wage receivables, refuse leave, overtime and milk leave receivables with partial acceptance of the case on the grounds that the plaintiff does not have any receivables for milk leave.

The decision was appealed by the deputies of the parties.

Reason:

1. According to the articles in the file, the evidence collected and the legally binding reasons on which the decision is based, all of the defendant’s and plaintiff’s appeals outside the scope of the following paragraph are not in place.

2. 74 of the Law No. 4857.according to the article, female workers are allowed 1.5 hours of milk a day so that they can breastfeed their children under the age of 1. The worker himself determines between which hours this period will be used Decisively. This period is counted from the daily working time. The employee cannot request bulk use by collecting the milk permit. The sanction of not granting milk permission by the employer is also referred to as an administrative fine under Article 104 of the Law. it is stipulated in the article. It should be noted that a behavior that is connected to a criminal sanction should also have a legal sanction.

Milk permission is an excuse permission arising from the law and is a legal right. As a rule, it is also subject to a fee. However, it has a non-postponement feature and cannot be used later. For this reason, it must be requested by the worker to be used as soon as it is born. Although no remuneration is provided for the milk permit, a legal sanction, such as a criminal sanction, should also be attached if it is not given to the employee.
If the employee has worked a daily 1.5-hour time with a milk permit, since he works overtime in return, it should be considered overtime, and the remuneration for overtime should be calculated and regulated.

In the concrete dispute, the plaintiff claimed that she was not allowed to use milk permission after childbirth, while the defendant argued that she used milk permission for five days wholesale. First of all, from the date of birth of the plaintiff to the date when the born child reaches the age of one, a total of 1.5 hours of daily milk leave that the plaintiff should use, except for the days of birth and other leave that the plaintiff uses, should be determined, deducted, the remaining part should be calculated as overtime pay on the date that should be used, and the provision for milk leave should be made, while the refusal of this receivable with a written justification is erroneous.

3. The claimant’s last remaining 15 days leave fee is 1,830.66 TL. it is accepted that the receivable has been accrued and paid with the payroll dated 30.04.2013. But the payroll is unsigned. The bank records were brought up to 15.04.2013. It is inappropriate to decide to reject this receivable before determining whether the permission is paid by the bank payable way.

CONCLUSION: It was unanimously decided on 27.04.2017 that the appealed decision would be OVERTURNED due to the reasons written above, and the appeal fee received in advance would be returned to the relevant person if requested.

T.C
SUPREME
22. law office
MAIN NUMBER: 2015/12878
DECISION NO:2016/17527
DECISION DATE: 13.06.2016
COURT : Labor Court

LAWSUIT: The plaintiff has requested that it be decided to pay the overtime wages, maternity and dairy leave.
The court partially granted the request.
Although the parties have been appealed by their lawyers during the sentence period and a hearing has been requested by the plaintiff’s lawyer; provisional 3 of the Code of Civil Procedure No. 6100. 438 of the abrogated Code of Civil Procedure No. 1086, which continues to be applied in accordance with Article. after the decision was made to reject the hearing request from the amount in accordance with the article and to conduct the examination on the documents, the report prepared by the Examination Judge … was submitted, the file was examined, and the necessary conversation was considered:

decision

The plaintiff’s attorney, the defendant, his client at work 01.09.1991-08.03.2013 working between the dates, benefit from the provisions of TIS in force in the place of work, whether on the labor 24.01.2010 on sabbatical 04.01.2010 prenatal, prenatal use of permissions that can only leave after the birth of a week on was added to the remaining period is added to the permission of whether you often use to milk two hours that need to be given the permission, whether any payment was not made, stating that overtime wages were not paid, she demanded the collection of the wages of overwork and maternity and milk leave from the defendant.

The defendant’s attorney argued that the dismissal of the case should be decided by objecting to the time limit.

At the end of the trial conducted by the court, it was decided to accept the request for overwork and reject other requests.

The decision was appealed by the deputies of the parties within the legal period.

Reason:

1-According to the evidence collected in the articles in the file and the legally necessary reasons on which the decision is based, all of the defendant’s and the plaintiff’s other appeals that are outside the scope of the following paragraphs are not in place.

2-The issue of whether the plaintiff worker is entitled to milk leave pay is also in dispute between the parties. Dec.
69/3 of the Labor Law No. 4857. in its paragraph, “Workers’ night work cannot exceed seven and a half hours. However, tourism, private security, and health services, on the condition that written consent be obtained in the work of the worker on seven and a half hours of night work can be made to” work night and there is no provision of increased wage paid over in the matter of a legal arrangement is not, although there has been clarified the situation with the jurisprudence of the resident to our apartment and at night more work that should be paid through increased fees have been accepted.

As for the issue of milk permission, 74/7 of the Law No. 4857. in its article, “Women workers are allowed a total of one and a half hours of milk a day to breastfeed their children under the age of one year. The worker himself determines between which hours this time will be used and Decimated by how many. This period is counted from the daily working time.” there is an arrangement in the form.

Therefore, in accordance with the law, it is not a situation that is at the initiative of the employer to give milk permission to women workers for one and a half hours a day to breastfeed their children (otherwise, but in favor of the employee, as time can be arranged between the parties), but 74/7 of the Labor Code No. 4857. Dec. in accordance with paragraph 50 of the Constitution, it is stipulated that the employee will determine between which hours this period will be used and divided by how many, and if the employee should use a milk permit, but this permit is not used, the calculation should be made on the basis of a 50% increase in wages by determining the unused period Dec. 50/2. the provision had to be overturned because it would be more in line with the spirit of the Law No. 4857 by adopting its article and purposeful interpretation.

CONCLUSION: It was unanimously decided on 13.06.2016 to OVERTURN the appealed decision due to the reasons written above and to return the appeal fee received in advance to the relevant person upon request.

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