Assessment of Saturday in Annual Leave Calculation

Article 56/5 of the Labour Law No. 4857 ("Law") stipulates that in the calculation of paid annual leave days, national holidays, weekly rest, and general holidays that coincide with the leave period are not counted from the leave period. Article 3 of Law No. 2429 on National Holidays and General Holidays states that the weekly rest period is Sunday and Saturday is not considered within the weekly rest period. Therefore, in principle, Saturday is also a working day and is not considered within the weekly rest period. Accordingly, in a place where the employee works five days a week, in other words between Monday and Friday, in the calculations regarding the annual leave period Saturdays are not considered as a weekly rest period in the calculations regarding the annual leave period. However, if it is explicitly agreed in the labour agreement concluded between the parties that Saturday is a "weekly rest period", it shall be considered as a weekday or general holiday as stated in Article 56 of the Law and shall be deducted from the annual leave period.

When the jurisprudence on the subject is examined, upon the closure of the 22nd Civil Chamber of the Court of Cassation and the assignment of its President and Members to the 9th Civil Chamber of the Court of Cassation, the issues in dispute were discussed in the decisions of both Chambers and thus, it was decided to consolidate the practice on many areas. The recent decision of the 9th Civil Chamber of the Court of Cassation numbered E. 2021/897, K. 2021/5272, in brief, subjects a dispute between parties regarding how Saturday should be considered in the calculation of the annual leave period if agreed that it is a rest day in the Collective Labour Agreement.

The claimant's attorney stated that since his client is a union member who benefits from the Collective Labour Agreement, according to the Collective Labour Agreement, Sunday is regulated within the weekly rest period, and Saturday is regulated as a contractual holiday, so that, in accordance with the Law and the Collective Labour Agreement Saturday is also considered within the weekly rest period that should not be deducted from the annual leave period. This claim of the employee's attorney was accepted by the local court and it was decided to reject the defendant's appeal application to the Regional Court of Appeal on the merits.

In the decision of the 9th Civil Chamber of the Court of Cassation, by referring to the previous practice of the Chamber, the following judgment was established:

“It can also be agreed upon that Saturday is within the weekly rest period. If Saturdays and Sundays are determined within the weekly rest period in the individual or collective labour agreements, both days are not counted as annual leave as per Article 56/5 of the Law. In other words, Saturdays and Sundays within the annual leave period are deducted from the annual leave period. However, if there is an explicit rule in the individual or collective labour agreement that this Saturday, which is added to the weekly rest period, will be counted as a working day in the calculation of annual leave or will not be deducted from the leave period, this provision should be considered valid and only Sundays coinciding with the annual leave should be deducted from the leave period in accordance with Article 56/5 of the Law.

However, as can be seen from the aforementioned Collective Labour Agreement, in addition to Sunday, which is recognised as a weekly rest day by the parties, Saturday is also determined as a rest day. Nonetheless, Saturday is not named a "weekly rest period" and there is no explicit regulation that it will be added to the leave period in the calculation of annual paid leave. In the context of this determination, it is clear that the acceptance decision made by the court of the first instance is not appropriate according to the practice of our Chamber mentioned above.”

To summarize, in cases where the employee actually works 5 days a week but there is no provision as such in the individual labour agreement or collective labour agreement, Saturdays will also be considered within the annual leave period. Therefore, an employee who takes 7 days off a week (since only Sunday will be accepted within the weekly rest period will be considered to have used 6 days of the annual leave period.

Likewise, even if it is agreed upon by parties that Saturday is a "weekly rest period" in the labour agreement, if there is a (separate) provision in the agreement stating that Saturday will be counted as a working day in the calculation of annual leave or that it will not be included in the annual leave period, the employee who takes 7 days off a week will be considered to have used 6 days of his annual leave.

On the other hand, in cases where Saturday is accepted as a "weekly rest period" in the individual or collective labour agreement, Saturdays will not be included in the annual leave period. In such case, an employee who has a seven-day holiday will be considered to have used 5 days of the annual leave period, and Saturday and Sunday will have to be deducted from the calculation.

Tagged with: Özoğul Yenigün & Partners, Evrim Uygur Yamaner, Zeynep Bağır, Labor & Employment, Labor, Employment