Proof of Overtime Pay Through Witness Testimonies in the Light of Supreme Court Decisions

One of the most common labor claims in practice is the claim for overtime pay. In proving overtime pay, the employee must demonstrate that they worked overtime, while the employer must prove that they paid for the overtime work.

In its decision dated 04/11/2020, File No. 2016/30119 and Decision No. 2020/14681, the 9th Civil Chamber of the Court of Cassation stated:

"In labor law, the employee who claims to have worked overtime or on holidays must prove their claim, and the employer must prove that they have paid the corresponding wage for it."

In practice, clauses in standard employment contracts signed by the employee, stating “I have received my overtime pay,” are not valid if the overtime work can be proven, and the claim for overtime compensation can be acknowledged legally.

An employee can prove overtime work with any kind of evidence. However, it should be noted that under Article 199 of the Code of Civil Procedure, the primary evidence for proving a claim is a document. In cases where a document is not available or does not meet the necessary criteria, witness testimony can also be used to prove overtime work.

According to a settled principle of the Supreme Court of Appeals (Yargıtay) in Turkey:

"For the proof of overtime work, workplace records, especially documents showing entry and exit times at the workplace, and internal workplace correspondence are considered evidence. However, if overtime work cannot be proven with written documents, parties should rely on witness statements to reach a conclusion. Additionally, generally known facts can also be considered in this context. The nature and intensity of the work actually performed by the employee should be examined to determine whether there was overtime work."

This principle is upheld in the decisions of the 9th Civil Chamber of the Court of Cassation: 2015/25462 E., 2018/22543 K., dated 06.12.2018, and 2016/2003 E., 2019/11470 K., dated 20.05.2019.

Witness statements are highly significant in proving claims for overtime pay. In Turkey, especially in small-scale workplaces, the working hours of employees are not regularly systematized. This is not only a characteristic of small businesses; even in some large companies, it is known that employers do not adhere to the working hours stated in employment contracts, compel employees to work overtime, and often fail to maintain regular and systematic workplace records. Informal employment is also a known issue both in urban and rural areas.

Furthermore, records and documents unilaterally maintained by employers can be inaccurately recorded, and these documents may not always be provided to employees, raising concerns. In such situations, employees relying on witness testimony for proving overtime work is a common practice.

A witness is a third party who has knowledge or observation about the dispute. Witness testimony involves individuals, who are not parties to the lawsuit, informing the court about facts they have directly acquired outside of the legal proceedings. Although witness statements are crucial and indispensable, they are considered discretionary evidence and are subject to the judge's independent assessment due to potential issues like perception errors, forgetfulness, and the possibility of intentionally conveying incomplete or incorrect information.

As overtime work is an act, it can be proven with witness testimony. However, since payment is a legal transaction, the employer must prove with documentary evidence that they have paid for the overtime work and cannot rely solely on witness testimony. In other words, if an employee can conclusively prove overtime work through witness evidence, the employer must provide written evidence to prove that the overtime compensation has been paid.

For Witness Testimony to be Admissible, There Must Be No Written Document.

The employee must resort to witness statements only if there are no written documents available. In other words, witness statements are not considered if written documents exist. The Supreme Court of Appeals General Assembly, in its decision 2012/9-843 E., 2013/253 K., dated 20.02.2013, stated:

"An employee claiming overtime work is obliged to prove this claim. The rules related to payrolls apply here as well. A payroll bearing the employee's signature is conclusive evidence unless its forgery is proven. In other words, unless the forgery of the payroll is claimed and proven, it is assumed that overtime pay shown on the signed payroll has been paid. Workplace records, especially documents showing entry and exit from the workplace, and internal workplace correspondence, are evidence for proving overtime work. However, if overtime work cannot be proven with such written documents, the parties must rely on witness statements. In addition, some generally known facts can be considered. The nature and intensity of the work actually performed by the employee should also be investigated to determine the existence of overtime work."

The Supreme Court of Appeals 9th Civil Chamber in its decision 2012/16274 E., 2014/19047 K., dated 11/06/2014, concurs with this view.

The Supreme Court of Appeals has stated that an employee claiming to have worked overtime must prove such work and that, in proving overtime, written documents such as payrolls and workplace records are primarily sought, and only in the absence of such documents should witness testimony be considered.

Witnesses Must Be Familiar with the Workplace's Operational Structure.

In proving overtime work, it is important that the witnesses the employee presents to the court are familiar with both the employee's and the workplace's operational structure and system. Therefore, when hearing witnesses, the court should ask specific questions about the employee's working hours, including days and times. Otherwise, it becomes difficult for experts to calculate overtime work.

In its decision 2006/1706 E., 2006/7084 K., dated 21.03.2006, the Supreme Court of Appeals 9th Civil Chamber said:

"The claimant's overtime work and work on holidays and general holidays were calculated based on the statements of a witness who left the workplace in March 2001. However, it is impossible for a witness, who left the defendant's workplace and started working at another workplace according to their own statement, to know the working conditions at the defendant's workplace after this date. Therefore, overtime and holiday pay should have been calculated and included in the judgment for the period until the date the claimant's witness declared they had left the workplace."

Witnesses, besides knowing the workplace's working structure, system, and environment, must also base their knowledge on their own observations.

In its decision 22. HD. 2017/8327 E., 2017/13038 K., dated 01/06/2017, the Supreme Court of Appeals of Turkey stated:

"In this specific case, the claimant's request for overtime compensation was calculated based on witness statements for the entire period of employment. It is evident from the witness testimonies that the claimant started working at the ... workplace from 2014, and the witnesses worked with the claimant in the same workplace during this period. The claimant previously worked on a boat, and the witnesses do not have observational knowledge about this period. Therefore, the claimant's overtime compensation should be assessed and decided upon based on the periods when the witnesses worked with the claimant. Witnesses can only have knowledge about the working conditions during their own employment periods, and their testimonies can only be considered for these periods. The decision given without considering these points is erroneous and requires overturning."

The Court emphasizes that witness statements should only be valued for the periods they worked together with the claimant, and not for periods where the witness does not have observational knowledge about the claimant's work.

In another decision, 22. HD. 2017/34436 E., 2017/13300 K., dated 06/06/2017, the Court stated:

"In this specific case, lawsuits filed by workers performing the same job as the claimant for overtime compensation were dismissed, and these decisions were upheld by our Chamber in 2015/33358 and 2016/26795. Although it was stated that the claimant cleaned the manager's office and left work after the manager, since the claimant's witnesses declared working hours from 07:00-16:00 on weekdays and 09:00-14:30 on Saturdays, their statements about hours beyond these cannot be considered observational and cannot be relied upon. Considering the file, it is understood that the weekly working hours did not exceed 45 hours, so the acceptance of the overtime compensation claim is erroneous, and the judgment should be overturned."

The Court explains that evaluations can only be made for the hours when the claimant and witness worked together, and statements outside these hours cannot be considered observational.

Lastly, in the decision 9. HD., 2013/1924 E., 2014/35160 K., dated 24.11.2014, the Court stated:

"However, statements from witnesses who are not familiar with and cannot possibly know the work arrangement at the workplace cannot be valued. In this case, although the decision was based on the statements of the claimant's witnesses to accept the claims for overtime and national holiday general holiday compensation, since the claimant's witnesses were not employees of the workplace and were not in a position to know the claimant's work arrangement, accepting these claims, which the claimant could not prove, is erroneous."

Here, the Court asserts that statements from witnesses who did not work in the same workplace as the claimant should not be valued.

Witness Statements Should Be Credited Only to the Period They Worked.

It is necessary to credit the statements of a witness only to the period during which they worked.

In its decision dated 12.11.2015, case number 2015/29410 E., 2015/30819 K., the Supreme Court, 22nd Civil Chamber stated:

"From the statements of the witnesses, it is understood that they did not work together with the plaintiff throughout the entire employment period. Accordingly, it should be accepted that overtime work has been proven for the periods during which the plaintiff witnesses worked together with the plaintiff at the defendant's workplace, as determined according to the Social Security Institution records, and the claims for other periods should be rejected as they are unproven."

indicating that credibility should be given to the statements of the witnesses for the periods they worked together with the plaintiff.

In its decision dated 13.06.2017, case number 2017/35056 E., 2017/14053, the Supreme Court, 22nd Civil Chamber, stated:

"Although the court has credited the witness statement of the plaintiff witness for overtime pay claims, as the witness worked at the defendant's workplace, it is understood from the Social Security Institution records and the witness's own statement that they did not work in the same branch as the plaintiff during every period. In this case, the periods during which the plaintiff witness worked in the same branch as the plaintiff should be clearly determined without any doubt, and a judgment should be formed accordingly..."

and expressed that the witness testimonies should only be credited for the periods they worked in the same branch as the plaintiff, not for their entire employment period.

In its decision dated 01.07.2019, case number 2016/17382 E., 2019/14694 K., the Supreme Court, 22nd Civil Chamber, went further, stating:

"...Overtime can be proven by written evidence or through a witness. Testimonies of witnesses who do not and cannot know the working arrangement at the workplace cannot be valued. In the concrete dispute, the overtime pay claim is the subject of conflict, and during the trial, the plaintiff witness testimonies have been heard and the claimed amount has been calculated and ruled upon accordingly. Since the statements of the witnesses can only be a means of proof for the period they worked together, the overtime pay of the plaintiff should be calculated limited only to the period worked together with the witnesses. The plaintiff witnesses' social security service breakdowns should be obtained, and the exact period during which they worked at the defendant's workplace should be determined, and calculations should be made for the time intervals limited to the common working period with the plaintiff. For the remaining periods, since there is no written document, and the plaintiff witnesses could not possibly know the working arrangement at the workplace for periods outside their working time, the overtime pay for these periods should be calculated based on the defendant witnesses' statements. Ruling in the written manner without considering these factors is erroneous and necessitates reversal."

thereby suggesting that the Social Security service breakdowns of the witnesses should be included in the file, and the plaintiff's overtime pay should be calculated based on the exact periods the witnesses worked.

Hostile Witness Testimonies

In cases where individuals, who have filed a lawsuit against an employer and hence are hostile to them, testify as witnesses in another coworker's lawsuit, their statements should be approached with caution, and judgments should not be solely based on such testimonies.

In its decision dated 21.10.2019, case number 2016/34649 E., 2019/18527 K., the Supreme Court, 9th Civil Chamber stated:

"...In proving the plaintiff's claims, two witnesses were heard, and although these witnesses partially confirmed the plaintiff's overtime claims, it was understood that both witnesses had filed similar lawsuits against the same employer, indicating hostility towards the defendant. Extreme caution should be exercised regarding the statements of these plaintiff witnesses. It is not acceptable to deem the claims of overtime and work on weekly holidays proven solely by these statements. Therefore, it is erroneous to accept the plaintiff's claims for overtime and holiday pay which he/she failed to prove..."

emphasizing the need for caution in considering the testimonies of individuals who have filed lawsuits against the defendant employer, and stating that conclusions should not be drawn solely from their statements but should be supported by corroborative evidence or facts.

There have been different decisions by the Supreme Court regarding hostile witness testimonies. After the merger of the 9th and 22nd Civil Chambers under the name of the 9th Civil Chamber, a principle decision was made in September 2020. According to this principle decision:

"Evaluation of hostile witness testimonies in proving claims of overtime, weekly holidays, and public holidays: In proving working hours, caution should be exercised with the statements of witnesses who have filed lawsuits against the employer. The claims of overtime, weekly, and public holiday work cannot be solely established based on hostile witness testimonies. However, hostile witness testimonies that are supported by corroborative evidence or facts should be considered credible. In this context; the characteristics of the job and workplace, the statements of defendant witnesses, reports or records prepared by labor inspectors, and finalized court decisions regarding the existence of such claims for the same working period can be considered as corroborative evidence or facts."

According to this principle decision, caution should be exercised with the statements of witnesses who have filed lawsuits against the employer, claims of overtime cannot be established solely based on hostile witness testimonies, hostile witness testimonies supported by corroborative evidence or facts can be credible, and factors such as the nature of the job and workplace, statements of defendant witnesses, reports or records by labor inspectors, and finalized court decisions related to such claims for the same working period should be utilized as corroborative evidence.

In its decision dated 22.12.2016, case number 2015/6147 E., 2016/22728 K., the Supreme Court, 9th Civil Chamber stated:

"The plaintiff in the lawsuit petition requested overtime and general holiday pay claims and presented witnesses to prove these claims. The court, however, decided to reject the plaintiff's claims for overtime and general holiday pay on the grounds that the plaintiff's witnesses were workers who had filed lawsuits against the employer, hence their statements could not be trusted. For the witness statements of those who have filed a lawsuit to be disregarded, they must solely be witness testimonies. If there are other pieces of evidence, they should be evaluated together. However, both defendants in their defenses acknowledged that the plaintiff worked overtime and that the overtime pay was settled. Both defendants have partial admissions regarding the overtime pay claims. Rejecting the claims for overtime and general holidays solely on the basis that the witnesses have filed lawsuits against the workplace is erroneous. Since the defendants also have admissions, it is incorrect to reject these two claims without conducting an expert examination."

This statement emphasizes that hostile witness testimonies, when supported by corroborative evidence, should be considered credible.

In practice, it is often observed that employees are reluctant to testify against their employers, not wanting to spoil their relations or fearing repercussions. Employees who have left their jobs often have no choice but to present other former employees as witnesses. However, rejecting certain labor claims solely because the witnesses are former employees who have lawsuits against the employer can lead to injustices and hardships for the worker. The right approach should be to exercise caution with hostile witness testimonies but not to outright dismiss them. A balanced approach should be taken, ensuring fairness for both the employee and the employer.

Another point to be noted is that if a witness who has filed a lawsuit against the employer has had their case concluded and finalized, they can no longer be considered a hostile witness, and their testimonies should be given credibility (Supreme Court, 7th Civil Chamber, case number 2016/25452 E., 2016/17846 K., decision dated 31.10.2016).

Statements of Neighboring Workplace Witnesses

In practice, it is observed that in labor lawsuits, witnesses from neighboring workplaces are also presented by the employee side. Caution should be exercised regarding the testimonies of neighboring workplace witnesses. While the statements of witnesses who do not work at the workplace and are not in a position to know the workplace's working arrangement, system, and environment may not be sufficient for the burden of proof, the statements of neighboring business owners and employees who can observe the working style of the workplace should be considered. The key factor here is whether the neighboring workplace witness is in a position to know the plaintiff's work entry and exit times and working conditions.

In its decision dated 23.09.2019, case number 2019/6622 E., 2019/16305 K., the Supreme Court, 9th Civil Chamber stated:

"...The plaintiff worker had made claims for overtime pay and national holiday general holiday pay. Although a judgment was made in accordance with the expert report obtained by the court before the reversal, after the reversal decision related to investigative procedure, both claims were rejected on the grounds that they could not be proven with the testimonies of neighboring workplace employees. It is important that witnesses are in a position to know the working arrangement of the workplace. Although proof typically requires testimonies of workplace employees, depending on the nature of the workplace, determining daily and weekly working hours based on the statements of neighboring workplace employees is also possible. In the specific dispute, considering the plaintiff worker worked at a stationery store opposite Bostancı Primary School, the testimonies of the workers in the school's canteen should be deemed sufficient regarding the plaintiff worker's daily and weekly working hours…"

This statement highlights the importance of witnesses being in a position to understand the working arrangement of the workplace, and that while normally proof should be conducted with the testimonies of workplace employees, depending on the workplace's characteristics, conclusions can also be drawn based on the testimonies of neighboring workplace witnesses.

Statements of Relative Witnesses

As a general rule, anyone, including children, spouses, and relatives, can be a witness. This rule also applies in labor litigation.

The Supreme Court General Assembly, in its decision dated 27.06.2019, case number 2016/22-2299 E., 2019/798 K., stated:

"...In labor lawsuits, one of the frequently used evidences to prove such claims is the testimony of witnesses. A witness, conceptually, is a third party with knowledge and observation regarding the dispute. Anyone can be heard as a witness, regardless of their age, legal status, or degree of kinship with the parties, as long as they are a third party in the case."

highlighting that the testimony of a relative can be valid.

However, when the witness is a relative of the plaintiff, the court must approach their statements with more caution. This is because there might be familial, blood, or interest ties between the relative witness and the plaintiff.

The Supreme Court, 22nd Civil Chamber, in its decision dated 27.3.2019, case number 2019/1580 E., 2019/6742 K., stated:

"...one of the plaintiff witnesses has stated that the plaintiff received minimum wage; only the witness, who is the plaintiff's sister and worked together at the same workplace for a period, has confirmed the plaintiff's statement. While kinship or other close relationships cannot be considered as a sole reason to devalue a witness's statement, when the plaintiff's witnesses' statements are contradictory, and the defendant witnesses have no statements regarding the wage, it is erroneous to rule without conducting a benchmark wage survey to determine the plaintiff's wage, which necessitates reversal..."

indicating that the testimony of a relative witness should not contradict other witness statements, and in case of contradiction, their testimony cannot be relied upon.

If a friend of the plaintiff worker, who does not work at the workplace, is heard as a witness, their statements cannot be trusted due to their lack of knowledge about the working arrangement. The Supreme Court has stated that when relatives and friends who are not employees of the defendant workplace testify, such testimonies should not form the basis of the judgment. In its decision dated 16.02.2017, case number 2017/2035 E., 2017/2410 K., the Supreme Court, 22nd Civil Chamber, stated:

"In the case file, the only evidence regarding overtime work is the testimonies of plaintiff's witnesses. Witnesses making statements on overtime work must be either employees of the workplace or knowledgeable about the working conditions. However, in the specific case, the heard witnesses are relatives and friends of the plaintiff and are not employees of the defendant workplace, so their abstract statements regarding the alleged overtime work are erroneous to base a judgment on. Since the plaintiff claiming overtime work at the defendant workplace has not proven his claim, the acceptance of the overtime work claim is erroneous and necessitates reversal."

highlighting this aspect.

Abstract Statements of Witnesses

Witness statements must be concrete and specific, providing clear and definite information about the start and end times of daily work, as well as break periods.

The Supreme Court, 7th Civil Chamber, in its decision dated 21.05.2013, case number 2013/10459 E., 2013/9304 K., stated:

"The court's judgment was based on an expert report which calculated overtime pay based on the plaintiff's witnesses' statements, estimating weekly 5 hours of overtime. The plaintiff's witnesses did not provide clear and definite information about the beginning, end, and break times of daily work. They abstractly stated that due to malfunctions, they sometimes worked 1 or 2 hours, sometimes until morning, 2-3 days a week. The expert also acknowledged this, making an estimation accordingly. As the plaintiff has not proven that he worked overtime as claimed, it is erroneous to award overtime pay. Therefore, the defendants' appeal regarding this matter should be accepted, and the decision should be overturned."

indicating that witness statements lacking clear and definite information about working hours and break times should not be credited.

It should be noted that when taking a witness statement in court, it must be clearly and concretely asked what hours the plaintiff worked, how many hours and days a week they worked overtime. Otherwise, vague, careless, and superficial witness statements will not lead the court to a correct conclusion. For example, statements like "Work would go on 24/7 at the workplace," "We would work until morning," "Some periods we worked every day of the week, some periods only a few days a month" are meaningless.

Contradictory Witness Statements

In cases where there are contradictions in the statements of party witnesses, further investigation should be conducted to resolve the contradictions.

Supreme Court General Assembly, in its decision dated 20.02.2013, case number 2012/9-843 E., 2013/253 K., stated:

"In this context, witness testimony, a frequently used evidence in labor lawsuits, is a discretionary evidence and does not bind the judge. However, while freely assessing witness testimony, the judge cannot decide solely based on personal conviction. When making a ruling based on witness statements, it must be explained why the witness testimony was or was not accepted. It should be noted that if there are contradictions between witness statements or between witness statements and other evidence, a judgment cannot be made solely based on witness testimony. In such cases, as part of the judge's duty to elucidate the case, witness testimonies should be supported by other evidence."

emphasizing that when there are contradictions in witness statements or between witness statements and other evidence, these contradictions must be resolved, and a judgment cannot be made based solely on witness testimony.

Plaintiff's Statements as a Witness in Another Case

If a plaintiff worker testifies in another case, their statements are binding and should be considered in proving and calculating overtime work.

The Supreme Court, 9th Civil Chamber, in its decision dated 17.12.2013, case number 2011/51335 E., 2013/33684 K., stated:

"There is a dispute between the parties regarding whether the plaintiff worker performed overtime and worked on general holidays. The expert report, which the court based its judgment on, accepted that the plaintiff worked 15 hours overtime per week and on national holidays, and calculated the overtime and general holiday pay. However, the plaintiff worker, in his testimonies in favor of the employer in lawsuits filed against the employer in ... Labor Courts, clearly stated that they worked from 8:30 to 17:30 with a 1 hour 45 minutes break, overtime pay was provided for work exceeding these hours, and there was no work on general holidays. The plaintiff's statements in court are binding on him. The court should have rejected the claims for overtime and general holiday pay up to the date of these statements. As for the period after the statements, the court erred in its written judgment without considering whether these claims are proven with definite and convincing evidence."

indicating that the statements made by the plaintiff worker in another case as a witness are binding on them.

Single Witness Testimony - Defendant Witness Testimonies

Relying solely on the testimony of a single witness for a conclusion is erroneous, as witness statements should corroborate each other according to the principle of witness verification.

The Supreme Court, 22nd Civil Chamber, in its decision dated 12.07.2013, case number 2012/24431 E., 2013/17424 K., stated:

"Deciding based solely on the testimony of a single plaintiff witness regarding weekly holidays is not appropriate."

highlighting this principle. However, if there is only one plaintiff witness and defendant witnesses exist, the claims can be substantiated if the plaintiff and defendant witnesses corroborate each other.

The Supreme Court rulings are in a similar direction. In its decision dated 18.03.2014, case number 2013/6947 E., 2014/6359 K., the Supreme Court, 22nd Civil Chamber, stated:

"According to the case file, the plaintiff worked as a driver in road construction and asphalt work at the defendant's workplace from 11.03.2000 to 20.06.2011, and the employment contract was terminated by the employer on 23.04.2011 due to absenteeism. The court's decision on overtime pay was based on an expert report calculated according to the statement of a single plaintiff witness. The report considered 44.5 hours of overtime in the summer and 21.5 hours in winter, but the reduction for equity was made without specifying the rate. The extra work pay granted by the court was calculated solely based on the statement of one plaintiff witness. Considering defendant witnesses, the nature of work at the defendant's workplace, and the overall case file, accepting that the plaintiff worked 6 hours of overtime per week is appropriate. Accordingly, overtime pay should be calculated for 6 hours per week, with a reduction for equity clearly stated in the decision."

indicating that in the presence of a single plaintiff witness, decisions should consider defendant witnesses, the nature of the work, and the entire case file.

Moreover, even though the burden of proof lies with the plaintiff worker, it is often seen in practice that the defendant side frequently presents witnesses. The employer defendant should consider this aspect when presenting witnesses, as sometimes an employee who cannot prove their case or can only prove a small portion of overtime with their witness can prove the rest of the overtime or the entire case with the defendant's witnesses. In other words, the defendant's presentation of witnesses can sometimes work against them.

The Supreme Court, 7th Civil Chamber, in its decision dated 10.01.2014, case number 2013/16646 E., 2014/28 K., stated:

"There is a dispute between the parties regarding the calculation of overtime pay. … In the specific case, the plaintiff worked for the defendant company from 20.10.2009 to 6.2.2011. The plaintiff witness T.. B.. worked at the workplace during July and August 2010, and another plaintiff witness L.. Ö.. during December 2009-February 2010. The plaintiff witnesses' working period covers only a very small part of the plaintiff's total working period. Therefore, while their statements should only be considered for the period they worked, it is incorrect to interpret them broadly to include the entire working period and use them for overtime calculation. Relying on the flawed expert report for the decision is inappropriate and is a reason for reversal."

indicating that the plaintiff's work period should be matched with the testimony of the single witness for a short duration, but for the longer period, the decision should be based on the defendant witnesses' testimonies.