An employee who claims to have worked overtime and demands overtime pay from the employer bears the burden of proving this claim. At this point, the employee may rely on written evidence such as workplace records, documents indicating entry to and exit from the workplace, and internal workplace correspondence. However, if an employee is unable to prove the overtime work through such written evidence, the employee may also substantiate her/his claims through witness testimony. Nevertheless, the Court of Cassation applies certain criteria when evaluating witness statements.
First of all, it is emphasized that in order for the statements of the witness to be relied upon, the relevant witness should have firsthand knowledge based on personal observation. In a recent decision of the 9th Civil Chamber of the Court of Cassation[1], the 9th Civil Chamber of the Court of Cassation expressed this point as: “The statements of witnesses who do not know and cannot know the working order at the workplace cannot be valued.” Indeed, in order for the statements of the witness to be relied upon, the witness must have personally witnessed the working hours of the employee claiming overtime. For example, in cases of remote working, the courts should approach the witnesses' statements regarding overtime work more cautiously.
In the aforementioned decision, it is also emphasized that in the determination of overtime work, it is not possible to reach a conclusion solely on the basis of statements of the witness with a common interest. Indeed, it is accepted that there is a common interest between the claimant employee and the witness, if the witness who made the statement has a lawsuit filed against the same employer, for example, for labor receivables or reemployment. This situation is stated in the decision as: “There is no dispute that the witnesses of the plaintiff filed a lawsuit against the defendant employer for labor receivables. Statements of a witness with a common interest should be treated with caution and the witness statements should be sought to be supported by other evidence or facts in accordance with the principle stated above.”
In another recent decision[2], the 9th Civil Chamber of the Court of Cassation, in line with the criteria explained above, stated that the testimony of a witness who did not work with the claimant employee throughout the entire employment period and who shared a common interest with the claimant was insufficient to prove that overtime work had been performed. As the case file contained no other evidence apart from the witness statements, the Court upheld the Regional Court of Appeal’s decision, which had ruled that awarding overtime pay was not appropriate under such circumstances.
Another point indicating common interests between the witness and the claimant employee is the fact that, in the concrete case, the claimant was also listed—and in many cases actually heard—as a witness in a separate lawsuit filed by the same witness against the same employer. In such circumstances, a strong impression arises that there exists a common hostility between the employees and the employer.
As a matter of fact, in a decision of the 7th Civil Chamber of the Court of Cassation dated 2016[3] in the same direction, this situation is clearly stated as: “However, it is understood that the plaintiff’s witnesses have lawsuits filed against the defendant employer with the same allegations and that they have testified in favor of each other in these cases. For this reason, it was erroneous to rely on their statements since they were hostile to the employer.”
In summary, when an employee files a labor receivables lawsuit claiming overtime pay and seeks to prove their claim through witness testimony rather than written evidence, certain criteria must be considered when evaluating such testimony. In this context, courts particularly seek the following conditions for a witness’s statements to be deemed credible:
In conclusion, certain conditions have been set for the binding nature of witness statements regarding the proof of overtime work, and it is crucial to pay attention to these factors when presenting witnesses in labor lawsuits.
[1] The Court of Cassation, 9th Civil Chamber, Case No. 2023/2223, Decision No. 2023/6798, dated 09.05.2023.
[2] The Court of Cassation, 9th Civil Chamber, Case No. 2023/4113, Decision No. 2023/7144, dated 15.05.2023.
[3] The Court of Cassation, 7th Civil Chamber, Case No. 2015/20952, Decision No. 2016/11178, dated 24.05.2016.
Authors:
Beril Yayla Sapan, Partner
Email: beril.yayla@gun.av.tr
Edanur Atlı, Senior Associate
Email: edanur.atli@gun.av.tr
Günce Güneş Ceylan, Associate
Email: gunes.ceylan@gun.av.tr