CASE OF TİBET MENTEŞ AND OTHERS v. TURKEY
Remainder inadmissible (Art. 35) Admissibility criteria;No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing)
Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström
7. The applicants were born in 1967, 1965, 1968, 1960 and 1958 respectively and live in İzmir. 8. The facts of the case may be summarised as follows. 9. The applicants have been employed in the duty-free shops at İzmir Adnan Menderes Airport since 1993. They are members of the Tekgıda Work Union, which had signed a collective labour agreement with the General Directorate of Monopolies on Spirits and Tobacco, the applicants’ employer and formerly a State-run enterprise. 10. During their employment the applicants operated in “work and rest cycles”. Accordingly, in the four months of the summer period they worked continuously for twenty-four hours and rested the next twenty-four hours. For the remaining eight months of the year, the winter period, they worked for twenty-four hours and rested for the next forty-eight hours. Their work schedule did not take account of weekends or public holidays as the dutyfree shops remained open twenty-four hours a day, seven days a week. As regards rest breaks and periods, section 22 of their collective labour agreement provided that such periods would be counted as working time and that they could not be subject to wage deductions. 11. On 10 October 2003 the applicants, with the assistance of their lawyer, instituted individual and separate proceedings against their employer before the İzmir Labour Court. They claimed compensation for the overtime hours they had worked beyond the legal working time for the previous five years of their employment. They referred to the Labour Code in force at the material time and to their collective agreement. Both documents defined overtime as work in excess of the regular forty-five-hour working week and provided for remuneration for such work at one and a half times the regular hourly rate. 12. On 1 November 2003 the applicants instituted new proceedings against their employer before the İzmir Labour Court and requested further remuneration for work done on weekends and public holidays and compensation for annual leave that they had not taken. 13. Having regard to the common background of the applicants’ complaints in both sets of proceedings, the İzmir Labour Court decided to join each applicant’s proceedings and to seek an expert report concerning the calculation of their claims for overtime, weekend and public holiday pay and remuneration for unused annual leave. 14. On 14 July 2004 the expert submitted a report in which he noted, inter alia, that clause 25 (c) of the collective agreement concluded between the parties provided for an entitlement to overtime pay, calculated on the basis of one and half times the hourly rate. He further referred to an official audit report by the Ministry of Labour, dated 10 September 2003, which noted that during the preceding summer period, between the months of June and September, workers at the company in question had worked overtime of 139.5 hours in months which had thirty-one calendar days and 135 hours in the remaining months. In the previous winter period, between October and May, they had worked 22.5 hours and fifteen hours of overtime respectively. The hours worked in excess of the legal working time should have been remunerated accordingly. According to the expert report, the applicants’ employer had previously been cautioned, on 25 November 1996, by the Ministry of Labour concerning its practices on working hours. 15. On the basis of his examination of the company’s timekeeping records, the expert calculated the number of hours worked as overtime in respect of each applicant, deducting three hours of rest per each day worked. 16. The expert determined that the employer did not owe anything to the applicants for weekend and public holiday work as the remuneration for those days had been in accordance with the applicable regulations. The expert also noted that the applicants could not claim any compensation for unused annual leave as they were still working at the company and such leave was only payable at the end of a contract. 17. The applicants raised a number of objections to the expert report. They stated that the timekeeping records used for the calculation did not reflect the actual hours worked as they were unofficial copies kept by the employer, which were not signed by employees. In that regard, the applicants submitted that they had worked for more hours than established by the expert. They requested that the court take other evidence into account, including the defendant employer’s shift orders, which detailed who would work when and for how long, as well as reports from the Regional Labour Inspectorate. They also submitted that the deduction of three hours of rest per day was not based on fact but was an assumption by the expert. The applicants submitted that in any event the expert’s hypothetical conclusion on rest periods could not be relied on because the collective agreement had expressly provided for the inclusion of such periods as a part of working time. The applicants raised no objections to the expert’s conclusion on the dismissal of their claims for pay for work at the weekend and on public holidays and for unused annual leave. 18. In submissions of 22 July 2004, the defendant employer raised objections to the expert report and also argued that the timekeeping documents could not be relied on as they were unofficial copies. It also maintained that it had been unable to pay overtime in full owing to a lack of funds from the State. It submitted that the applicants had in any event been aware of the working arrangements and had never requested a transfer to another unit of the General Directorate of Monopolies. 19. The İzmir Labour Court asked the expert to supplement his report with findings concerning the parties’ objections. 20. On 4 July 2005, the expert submitted a supplement to his report, in which he corrected his findings concerning the rest periods in the light of the applicants’ objection and calculated the hours they had worked as twenty-four in the course of a twenty-four-hour shift. He maintained his findings regarding the timesheets, submitting that his in situ examination of the workplace and comparisons between the official record and the employer’s copies had not revealed any inconsistencies. 21. On 12 September 2005 the İzmir Labour Court found in favour of the applicants in part and awarded them the amounts given in the expert’s report in respect of the unpaid overtime. It rejected their claims for pay for weekend and public holiday work and for unused annual leave. 22. Both parties appealed to the Court of Cassation. 23. On 17 April 2006 the Court of Cassation quashed the decision and remitted the case. It found that the Labour Court had not taken into account any time that could have been used for rest periods and that therefore the calculation of overtime could not be deemed accurate. It also stated that the overtime calculation should be based on weekly working hours rather than the monthly working time used in the expert report. 24. In the resumed proceedings, the İzmir Labour Court requested that the expert amend the report in light of the Court of Cassation’s decision. 25. On 11 September 2007 the expert revised the findings as ordered and concluded that the applicants were likely to have had a minimum of three hours for rest during a twenty-four-hour shift. The expert therefore recalculated their entitlement to overtime on the basis of twenty-one hours of actual work and compared it with the legal working week of fortyfive hours. 26. On 26 May 2008 the İzmir Labour Court awarded the applicants compensation for overtime as determined in the revised expert report. 27. The defendant employer appealed, arguing that the presumption established in the case-law of the Court of Cassation that a person could not work more than fourteen hours in the course of a twenty-four-hour shift should be applied to the facts of the dispute. The Court of Cassation then quashed the first-instance judgment on 28 October 2008 and remitted the case on the following grounds: “It can be seen from the case file that during the summer months [the applicants] worked for 24 hours and subsequently rested for 24 hours; and in the winter months they worked for 24 hours and subsequently rested for 48 hours. However, as determined by the well-established case-law of the Grand Chamber of the Court of Cassation’s Civil Division, in workplaces where there are 24-hour shifts, after the deduction of time spent on certain activities such as resting, eating and fulfilling other needs, a person can only work for 14 hours a day ... This approach must also be followed in the present case.” 28. In the resumed proceedings, the İzmir Labour Court decided to follow the decision of the Court of Cassation and another expert report was drawn up for that purpose. The report, dated 21 July 2009, calculated the applicants’ daily working time as fourteen hours, in line with the Court of Cassation’s presumption of fact. The calculation in the new report led to no overtime being found for the weeks in which the applicants had worked three days as the working time was less than the legal limit of forty-five hours. For the weeks in which the applicants had worked four days, the report calculated the total working time as fifty-six hours, leading to an assessment in the report of nine hours of overtime. On 28 December 2009 the İzmir Labour Court rendered a final judgment in the applicants’ case, based on the expert report of 21 July 2009. As a result of that interpretation, some of the applicants’ claims were dismissed entirely, while the others were awarded almost ninety percent less than the previous expert report had calculated. 29. On 25 January 2010 the applicants appealed against the decision and maintained that the fact that they had worked continuously for twenty-four hours had already been confirmed by the legal records of the Ministry of Labour, both parties’ witness statements and other evidence in the file, including the expert reports overturned by the Court of Cassation. Although they had proven that fact, the judgment had been based on the presumption that working for more than fourteen hours a day was physically impossible. 30. On 18 March 2010 the Court of Cassation upheld the İzmir Labour Court’s decision without responding to the applicants’ objections.