PRECEDENT WAGE ASSESSMENT IN LABOR LAW

What is a Precedent Wage in Labor Law?

Precedent Wage (Emsal Ücret): It is the wage that is equivalent or highly similar to the remuneration an employee ought to receive due to the specific nature of their work, duties, and professional capacity.

A precedent wage assessment is strictly executed in circumstances where the genuine wage of the employee cannot be verified through official documentation following the termination of the employment contract, or where a clear dispute exists between the employee and the employer regarding the true monetary layout of the wage. In such instances, the court verifies the wage by analyzing the remuneration packages of employees working in identical or highly similar positions.

The Statutory Basis of Precedent Wage Assessment

• Article 32 of the Labor Law No. 4857 (Titled "Wages and Payment of Wages"): “In general terms, a wage is the amount provided to a person by an employer or third parties in return for work performed, which is paid in money. As a rule, wages, premiums, bonuses, and all kinds of entitlements of this nature shall be paid in Turkish currency to the workplace or into a specially opened bank account.”

• Article 401 of the Turkish Obligations Code No. 6098 (Titled "The Obligation to Pay Wages"): It explicitly dictates that the employer is obliged to pay the employee the wage determined in the employment contract or the collective bargaining agreement; in circumstances where no explicit provision exists in the contract, the employer is legally bound to pay a precedent wage, provided that it is not less than the statutory minimum wage.

Legal Evaluation under Substantive Statutes:

Pursuant to Article 32 of the Labor Law, a wage is defined as a monetary sum provided in return for labor. Concurrently, Article 401 of the Turkish Obligations Code (TBK) explicitly solidifies the employer's obligation to pay a precedent wage to the employee if the contract remains silent. Under this code framework, it is a statutory necessity that the remuneration adjudicated to an employee must be a reasonable amount directly proportionate to the qualitative nature of the work performed.

Circumstances Triggers a Precedent Wage Assessment

An action for a precedent wage assessment is initiated under three primary legal scenarios:

• A. Inability to Verify the Genuine Wage Post-Termination: Where an active dispute arises between the employee and the employer regarding the true wage layout after the termination of the contract, or where the employer pays a deficient wage to the employee based on an inaccurate grading classification (Kadro Derecesi).

• B. Underreporting of Wages in Official Records (Under-the-Table Payments): A frequent malpractice in industrial relations where an employer officially registers an employee over the statutory minimum wage to evade higher tax brackets and social security (SGK) premiums, while paying the remaining balance of the genuine wage in physical cash (hand-to-hand).

• C. Absence of a Executed Written Employment Contract: Where the employment relationship is established purely through an oral agreement, leaving the specific remuneration terms unverified by written instruments.

How is a Precedent Wage Assessment Processed?

1. Requests Issued to Professional Chambers and Trade Unions: Official communications are sent to relevant professional associations and unions demanding the wage logs of employees working in similar capacities. Trade unions maintain detailed tracking of salary scales and historical collective bargaining data. The leading labor organizations routinely consulted in Turkey include:

   • Confederation of Progressive Trade Unions of Turkey (DİSK): Coordinates wage bargaining processes for member workers and holds deep industrial data regarding active employee wages.

   • Confederation of Turkish Trade Unions (TÜRK-İŞ): Directly represents the labor front during statutory minimum wage commission hearings and possesses extensive data regarding career scales and position-based wage distributions.

   • Hak-İş Trade Union Confederation: Actively operates across minimum wage assessments and the protection of constitutional worker entitlements.

2. Utilization of the Turkish Statistical Institute (TÜİK) Database: It is legally viable to extract the average wage logs for a specific profession or corporate position via the "Earnings Information Query" (Kazanç Bilgisi Sorgulama) digital service provided by TÜİK through the e-Government (e-Devlet) gateway.

   • Procedural Steps Executed via the TÜİK Interface: A) The specific title of the profession is entered into the search console. B) A formal automated report is generated to unearth the contemporary statistically verified average wage.

3. Cross-Examination of Market Competitors: An extensive analysis is executed over the wages of workers performing identical functions within the same geographical sector to liquidate the true value of the employee's labor.

   • Private Sector Firm Data: Consulting with human resource and salary analytics firms that track commercial compensation benchmarks.

   • Employee Salary Surveys: Gathering verified records from digital career portals and formal corporate compensation surveys to support the precedent data.

4. Multi-Factor Analytical Modeling: The collected data is meticulously filtered and analyzed by the court and expert witnesses, factoring in the employee's chronological tenure in the profession, professional title, technical capability, work performed, the corporate attributes of the workplace, and the corresponding grading classification (kadro derecesi).

Following this technical analysis, the genuine wage is judicially determined by the presiding Judge, and the specialized Labor Law Expert Witness calculates the statutory severance, notice, and other labor receivables based on this verified rate.

Criteria for Establishing Precedent Wages under Court of Cassation Jurisprudence

Pursuant to settled high-court jurisprudence, the Court of Cassation mandates that a precedent wage must be verified through the combined execution of the following criteria:

• Employee-Specific Criteria: The employee's seniority in the profession (mesleki kıdem), their tenure at that specific workplace, professional title, grading classification, vocational education, career path, and the actual work physically performed must be precisely mapped out.

• Diversified Data Gathering: Precedent wage queries must be issued to trade unions and employer associations, alongside processing a "wages information query" via the TÜİK database. Furthermore, matching documentation must be sought from private sector benchmarks and digital career databases.

• Holistic Evaluation of Collected Evidence: The court cannot rely on a single source; all gathered files, charts, and Institutional responses must be analyzed together to reach a definitive legal conclusion regarding the genuine wage.

• Oral Witness Testimony (Tanık Delili): If the collected contextual data creates a strong judicial suspicion that the wage written on the signed payrolls does not reflect the employee's genuine remuneration, the court must hear oral witness testimony and carefully weigh their statements.

Summary of Court of Cassation Benchmarks: To legally sustain a precedent wage assessment, the court must take into account: a) The specific features and size of the employer's workplace, b) The actual work performed and the employee's technical capacity, c) The professional title and its associated grading classification, d) The chronological seniority and professional tenure of the worker.

The Trade Union Membership Distinction:

The legal mechanism for verifying a precedent wage varies fundamentally based on whether the worker is a union member. The Court of Cassation rules that: A) For unionized employees, the query must be addressed directly to the matching trade unions. B) For non-unionized employees, the precedent wage query must be issued exclusively to TÜİK, the relevant Chamber of Tradesmen and Craftsmen (Esnaf ve Sanatkarlar Odası), or corresponding statutory professional chambers. (Court of Cassation, 9th Civil Chamber, Merits No: 2021/9077, Decision No: 2021/15948, Dated 30.11.2021).

LANDMARK PRECEDENTS OF THE COURT OF CASSATION

T.C. COURT OF CASSATION – 22nd Civil Chamber

• Merits No: 2014/27025

• Decision No: 2016/501

• Decision Date: 14.1.2016

Headnotes:

• THE INSUFFICIENCY OF EMPLOYER-ISSUED BANK LETTERS: A formal letter issued by an employer to an employee displaying an elevated salary—drafted solely to facilitate bank transactions such as a mortgage or personal loan application—cannot single-handedly dictate or verify the genuine wage in a court of law. (The court must execute a full precedent wage query through professional chambers and institutional bodies, factoring in the plaintiff's seniority, tasks, and technical capacity, and calculate labor receivables based on that outcome).

• PROVING OVERTIME RECEIVABLES IN SEASONAL LAND OPERATIONS: Where the defendant's witnesses assert that intensive operations did not occur during the winter months and that seasonal leaves were utilized, while the plaintiff's witnesses provide generic statements without distinguishing between summer and winter schedules; given that the work consists of topography and technical land measurement, overtime hours must be legally accepted as occurring exclusively between the months of April and October.

• THE NATURE OF LABOUR ACTIONS: Employment lawsuits require the exact liquidation of the wage. The parties to an employment contract can freely determine the layout of the wage under the freedom of contract principle, provided it does not fall below the minimum wage. Accepting a plaintiff's high wage claim without executing an institutional precedent wage query constitutes a reversible error.

SUBSTANTIVE TEXT OF THE JUDGMENT:

The plaintiff initiated this action asserting that they rightfully terminated the employment contract, demanding the collection of severance pay, notice pay, outstanding wages, overtime pay, unused annual leave, weekly rest day wages, and public holiday (UBGT) compensation from the defendant.

The defendant, K... Transport Company, argued for the dismissal of the lawsuit, asserting that the plaintiff was an employee of a sub-contractor (alt işveren), that they held no joint liability, and that the official corporate records indicated no outstanding receivables. The other defendant, A... Company, failed to submit a statement of defense.

The Court of First Instance, relying on the gathered evidence and the expert witness report, accepted all claims of the plaintiff except for the unused annual leave pay. This judgment was appealed by all parties to the dispute.

Legal Evaluation and Reversible Error Regarding Wage Liquidation:

The exact amount of the wage paid to the employee is highly disputed between the parties. The plaintiff asserts that they worked as a technical technician at the workplace since 10.10.2011, and oral witness testimony indicates they received a monthly wage of $4,000.00 \text{ TL}$. Conversely, the employer argues that the unsigned payrolls displaying a monthly wage of $1,093.00 \text{ TL}$ reflect the statutory truth.

It must be accepted as a settled rule of law that written documents provided by an employer displaying an inflated wage to facilitate banking or loan credits for an employee are insufficient on their own to establish the true wage scale. The document presented in the concrete case asserting a salary of $4,000.00 \text{ TL}$ must be evaluated within this exact context.

The Lower Court's uncritical acceptance of the plaintiff's salary claim without executing an institutional precedent wage query is a severe procedural error. The court must issue formal queries to the relevant professional chambers and associated institutions, explicitly identifying the plaintiff's seniority, exact job description, and technical capability. The true wage must be liquidated based on the complete file context, and the calculations must be revised accordingly.

Proving Overtime Hours in Technical Field Work:

The worker asserting that they executed overtime hours bears the strict burden of proof. A payroll bearing the signature of an employee constitutes conclusive evidence (kesin delil) until its forgery is judicially proven. Unless forgery is explicitly asserted and proven, the overtime payments recorded on a signed payroll are legally presumed to have been paid.

Where written documentation—such as digital turnstile logs, time-cards, or internal corporate correspondences—is unavailable, the court must resolve the dispute via oral witness testimony. Furthermore, universally known generic facts and the precise physical environment of the job must be taken into account. If signed payrolls contain no overtime logs and bear no formal reservation (ihtirazi kayıt) by the worker, proving a higher overtime duration requires valid written evidence.

In the concrete dispute, the plaintiff's role is verified as a topographer working out on an irrigation construction site. The defendant's witnesses explicitly testified that intense field operations ceased during the winter months due to terrain conditions and that employees were placed on leave, whereas the plaintiff's witnesses generalized their statements across the whole calendar year.

The Lower Court correctly noticed this structural intensity when calculating weekly rest day benefits, restricting the computation exclusively to the period between April and October. Since topographic measurement requires active land visibility and open field work, restricting the overtime calculations to the April–October window is far more compatible with the physical truth of the file.

DECISION:

For the reasons detailed above, the judgment of the Lower Court is REVERSED, and the advance appeal fees shall be returned to the relevant parties upon request. Decided UNANIMOUSLY on 14.01.2016.

Court of Cassation – 9th Civil Chamber

• Merits No: 2022/2680

• Decision No: 2022/3849

• Decision Date: 22.3.2022

Summary of Judgment:

“Although the Lower Court summarily dismissed the plaintiff's wage claims on the grounds that a salary cannot be verified solely through oral witness testimonies and that the plaintiff failed to document their claims, a review of the file reveals that the defendant’s own witness explicitly verified the plaintiff's claims by stating that a portion of the wages was routinely paid in physical cash under-the-table.

When this admission is combined with the plaintiff's specialized job description, accumulated seniority, and professional title, accepting the low minimum wage written on the face of the underreported payrolls as the true wage constitutes a severe legal error.

In this scenario, the court must communicate with trade unions and employer federations by providing the worker’s exact employment dates and professional title to discover the true market scale. Furthermore, the court must check the 'earnings information query' section on the official website of the Turkish Statistical Institute (TÜİK). Deciding the case based on an incomplete and deficient investigation requires a REVERSAL of the judgment.”

Court of Cassation – 9th Civil Chamber

• Merits No: 2021/9077

• Decision No: 2021/15948

• Decision Date: 30.11.2021

Summary of Judgment:

“In the concrete case, the plaintiff asserted in their petition that they were employed by the defendant as a head chef (aşçıbaşı) over a net monthly wage of $4,000.00 \text{ TL}$, but that the employer underreported their status to the Social Security Institution (SGK) over the base minimum wage. The plaintiff claimed they were deprived of the $2,200.00 \text{ TL}$ cash balance of their salary for the final four months. The defendant argued that the wage written on the signed payrolls reflected the statutory truth. The Court of First Instance accepted the plaintiff’s claim of a net salary of $4,000.00 \text{ TL}$ and calculated the receivables accordingly.

However, a detailed analysis of the evidence shows that while plaintiff witness R.G. lacked personal knowledge of the salary, witness G.Ö. merely guessed that the salary was 'close to 4,000 TL.' The defendant's witnesses held no knowledge of the matter. According to the signed payrolls, the net wage was $1,458,31 \text{ TL}$.

Although a trade union responded to the court's precedent wage query by stating that a head chef's wage ranges between $4,000.00 \text{ TL}$ and $7,000.00 \text{ TL}$, the plaintiff worker is not a member of a trade union. Under settled high-court rules, utilizing a wage scale provided by a trade union for a non-unionized worker is procedurally invalid. The court must instead issue queries to TÜİK and the relevant Chamber of Cooks and Chefs to establish a non-unionized market average. The judgment must therefore be REVERSED.”

REFERENCES:

• Constitutional and Statutory Precedents – Official Gazette of the Republic of Turkey

• National Judicial Network Project (UYAP) – Labor Law Statutes

• Settled Precedents and High Court Records of the Court of Cassation (Yargıtay)