Constitutional Court Decision No. 2019/1450 dated 22 February 2022 Regarding the Violation of the Right to Property Due to Non-Payment of the Employee’s Overtime Pay

As a result of the employer’s unilateral termination of the employment contract of the applicant employee based on Article 18 of the Turkish Labour Law No. 4857 (“Law”), the court of first instance ruled that the employee’s severance pay, notice pay, and annual leave receivables converted into monetary compensation had been underpaid. The court further determined that the overtime pay calculated by experts for 260 hours of overtime had not been paid at all.

The court accepted that, pursuant to the Law, the employer was required to pay overtime wages for the periods after the first year of employment, since the employer failed to prove that it had obtained the employee’s approval for overtime work at the beginning of each year.

The employer appealed the decision before the regional appellate court. The Adana Regional Court of Appeal held that, based on the provision in the employment contract stating that overtime wages were included in the employee’s basic salary, the employee had already been compensated for annual overtime work not exceeding 270 hours unless the employee withdrew such consent.

The Regional Court of Appeal further stated that, following the amendment made to Article 9/2 of the Regulation on Overtime Work under the Labour Law on 25 August 2017, the requirement to obtain the employee’s approval for overtime work every year had been abolished. Therefore, the employee’s approval given at the time of signing the employment contract remained valid unless withdrawn. Accordingly, the court concluded that the employee was not entitled to additional overtime pay.

The employee subsequently applied to the Constitutional Court, claiming that the denial of his overtime wage claim by the appellate court constituted a violation of his right to property.

The Constitutional Court assessed the matter and stated that:

• With the amendment made to Article 9/2 of the Regulation on 25 August 2017, the requirement to obtain approval from the employee at the beginning of each year had been abolished, and the approval provided at the time of execution of the employment contract was deemed sufficient.

• The employee’s approval relates only to whether the employee may be required to work outside the statutory working hours and does not constitute a waiver of the right to claim overtime wages. There is no legal provision stating that consent to overtime work means a waiver of overtime pay.

• As the employee had accepted in the employment contract that overtime compensation was included in the basic salary, the failure to award additional overtime pay would not, in principle, constitute a violation of the right to property.

• Although there is no legal obstacle preventing an employee from waiving an earned overtime wage claim, such waiver must satisfy the legal requirements for validity. Therefore, even if the employee is deemed to have consented to overtime work without requesting additional payment, the failure to pay overtime wages for overtime hours worked after the first year of employment must be considered contrary to mandatory legal provisions.

Conclusion

The Constitutional Court concluded that the Regional Court of Appeal had made an interpretation constituting a serious error in applying the legal rules concerning entitlement to overtime pay.

The Court determined that the employee had performed overtime work during the period between 2008 and 2015, during which obtaining the employee’s approval at the beginning of each year was mandatory. Under the provisions of the Regulation applicable before the amendment, the employer was required to obtain renewed consent from the employee for overtime work in the years following the first year of employment, even if the employee had not withdrawn his initial consent.

Since the employer failed to obtain the employee’s renewed consent for overtime work during these periods, the Constitutional Court found that the employee’s right to property had been violated.

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