Proving the Right to Annual Leave – Supreme Court Decision

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Burden of proof as regard to use of annual leave rests on the employer according to Supreme Court decision. The ruling depends on the provision that stipulates “employer must keep a roster showing the paid annual leaves of the employees working in the establishment”.

ANNUAL LEAVE IN TURKISH LABOR LAW

Labor Law places special emphasis on paid annual leave of employees and contains many detailed articles concerning the subject. Some of them are as follows:

  • Employees, who have completed a minimum of one year of service in the establishment since their recruitment, including the trial period, shall be allowed to take annual leave.
  •  An employee neither can waive his right of vacation nor can s/he engage in gainful employment during this period.
  • Leave periods may be divided by mutual consent, provided that one of the parts shall not be less than ten day.
  • National holidays, weekly rest days and public holidays that coincide with the duration of paid annual leave may not be included in the annual leave period.
  • Employees’ paid leave entitlements and the leaves taken should be recorded in a "vacation book" and the documents in respect to leaves must be signed with both employee and employer. Documents related to annual paid leave should be kept in employees' personal files.
  • Any annual leave remuneration due to, but not yet claimed by employee must be paid to them, or persons entitled on their behalf, upon the termination of an employment contract for any reason, at the wage rate prevailing on the date of termination.

THE CASE

  • Matter in dispute: payment of unused annual leave along with notice and severance pay for dismissed employee.
  • Employer claimed that employee had already used his annual leave.
  • However there are no records as regard to annual leave use.
  • Employee pleaded that employee has to prove that he has unused annual leave balance.
  • Court ruled that “according to Law No. 4857 burden of proof, regarding annual leave use, rests on the employer, as the employer didn’t keep any record for the paid annual leave, the wage corresponding to unused annual leave period should be paid along with notice and severance payment.  

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