In working life, rest is not a favour left to the employer’s discretion but a right secured by the legislature in mandatory terms. Article 46 of the Labour Act No. 4857 affords an employee who has met the working conditions prescribed within a seven-day period an uninterrupted rest of at least 24 hours, and requires that one day’s wage be paid even though the employee performs no work on that day.
This right has two dimensions. The first is the social dimension, directed at the employee’s physical and mental recuperation; the second is the securing of the wage. Where work is performed on the rest day, a separate payment must be made to the employee in addition to the wage to which he or she would ordinarily be entitled. It is precisely because of this second dimension that weekly rest day pay is confused with overtime pay and other heads of employee claims, and has become one of the most frequently litigated claims before the labour courts.
Below we address, in turn, the rules on which the weekly rest day is founded, the conditions required for the right to arise, the method of calculation applicable where work is performed on the rest day, the rules on proof and the statute of limitations, and the course of the proceedings.
The Legal Basis and Definition of the Weekly Rest Day
The weekly rest day is a right, drawing its source from the Constitution, which provides that an employee who has performed the weekly obligation to work shall rest for at least 24 hours without interruption within a seven-day period. In everyday language the concept is often used synonymously with the "weekend"; the weekly rest day need not, however, fall on a Saturday or a Sunday, and any day of the week may be set aside for that purpose.
The constitutional basis of the right is Article 50 of the Constitution, which bears the marginal heading "Working Conditions and the Right to Rest":
Constitution of the Republic of Türkiye, Art. 50
"Rest is the right of employees. The rights and conditions of paid weekly and public holidays and of paid annual leave shall be regulated by law."
The framework drawn by the Constitution is given concrete form by Article 46 of the Labour Act No. 4857. Under that provision, an employee who has worked on the working days determined within the framework of Article 63 shall be given 24 hours’ uninterrupted rest within the seven-day period.
The conclusions to be drawn from the provision may be summarised as follows. The assessment is always made by reference to a seven-day period; unless otherwise agreed, completion of the 45-hour working week is required; the rest must not be interrupted at any point during the 24 hours; and the rest day is not required to fall at the weekend.
The case law of the Court of Cassation is to the same effect: periods of rest falling short of 24 hours are not counted as a weekly rest day.
Although Article 3 of Act No. 2429 on National and Public Holidays ties the weekly rest day to Sunday, that designation is not an absolute rule. The rest day may be moved in line with the order required by the work and the common intention of the parties.
Similar protection is contained in Art. 41 of the Maritime Labour Act and Art. 19 of the Press Labour Act. Weekly rest is therefore a constitutionally guaranteed right for employees falling within the scope of those statutes as well.
The Length of the Period and the Manner in Which It Is Granted
- The provision regulates in mandatory terms the uninterrupted 24-hour rest within a seven-day period afforded to the employee. The arising of the right depends upon the employee having worked on the working days determined; the proper discharge of the right depends upon the period being granted without being divided.
The Requirement of Continuity
The period required by the statute is a minimum of 24 hours, and the integrity of that period may not be broken. Periods of rest falling below that threshold do not take the place of a weekly rest day in law. On the settled view of the Court of Cassation, if the employee has been given a rest shorter than 24 hours, the weekly rest day is regarded as not having been granted and a claim for the corresponding pay arises.
The Rest Day May Not Be Split
The legal order does not permit the rest period to be granted in separate parts. Spreading part of the period over one day and the remainder over another, or seeking to make it good by means of daily rest breaks, does not amount to a valid granting of the right.
Moving the Rest Day
Although Act No. 2429 designates Sunday as the weekly rest day, that rule is not absolute. The working regime, the nature of the work and the agreement of the parties allow the rest day to be taken on another day of the week. In work carried out on a shift system, and in the health, tourism, retail and service sectors, the rest day in practice most often falls on a day other than Sunday.
The employer may change the rest day on grounds of organisational need. That choice does not, however, remove the obligation to provide 24 hours’ uninterrupted rest within the seven-day period. A failure to grant the rest at all, or granting it only in part, gives rise to a claim for weekly rest day pay.
The Effect of Compensatory Work
Compensatory work is a separate institution serving to make up, at a later date, time lost for compelling reasons, and it is not a substitute for the weekly rest day. Article 64 of the Labour Act prohibits, as a rule, compensatory work being required on holidays; such a practice may arise only where it has been agreed in the contract or where the employee’s consent has been obtained.
Two conclusions follow. The fact that the employee has performed compensatory work does not extinguish the right to a weekly rest day; nor does requiring an employee who has worked on the rest day to perform compensatory work afterwards bring the employer’s obligation to pay to an end.
The Method Applied in Calculating the Payment
The direction of the calculation varies according to whether the employee actually worked on the day in question. An employee who performs no work on the rest day is entitled to one day’s wage; an employee required to work on the rest day, by contrast, is paid a further day’s wage. The claim of an employee who works on the weekly rest day is therefore, as a rule, in the amount of two days’ wages.
Determining the Daily Wage
The wage to be taken into account in the calculation is not the employee’s all-inclusive gross wage but the bare gross wage; bonuses that are not paid on a continuing basis, and social benefits, are left out of that amount.
The daily amount is found by the following formula:
Monthly gross wage ÷ 30 = Daily gross wage
Two possibilities follow from this:
- If no work is performed on the rest day → 1 day’s wage
- If work is performed on the rest day → 2 days’ wages
(the sum of one day’s weekly rest day pay and one day’s pay for the work performed)
Calculation on an Hourly Basis
Where part-time work is in issue, or where the calculation in the court-appointed expert’s report must be made on an hourly basis, the hourly wage is taken as the basis:
Monthly gross wage ÷ 225 = Hourly wage
The working time spent on the rest day is paid for separately, being treated as the equivalent of the daily working time. In practice this payment is not absorbed within the head of overtime; it is shown as an independent head of pay.
Calculation Together with Overtime
If the work performed on the rest day also results in the weekly limit of 45 hours being exceeded, the employee may claim two separate heads together:
- weekly rest day pay
- overtime pay
These two claims rest on legal foundations independent of one another. Nevertheless, in order to prevent the same period being paid for twice, an offsetting adjustment is made by the court-appointed expert. The Court of Cassation likewise accepts that both heads may be claimed together where the conditions for each are met.
The Distinction Between Weekly Rest Day Pay and Overtime Pay
Although these two heads are frequently confused in practice, they differ both in their legal character and in the technique of their calculation. Overtime is the consideration for work exceeding 45 hours a week; weekly rest day pay, by contrast, arises from the rest day not being granted at all or from the employee being required to work on that day.
May the Two Heads Be Claimed Together?
They may. If the total weekly working time of an employee who works on the rest day has also exceeded 45 hours, weekly rest day pay and overtime pay may be claimed together in the same action. By their nature these claims are separate from one another.
The decisions of the Court of Cassation likewise adopt the view that work performed on the rest day does not displace a claim for overtime, and that where the conditions are met both heads may be awarded together. Even so, in order to eliminate the risk of double payment, the court-appointed expert is obliged to carry out an offsetting adjustment.
Assessing the Possibilities of Overlap
Work performed on the rest day does not in every case mean overtime. The possible scenarios are as follows:
- If the total weekly working time has remained below 45 hours, only weekly rest day pay arises.
- If, with the work performed on the rest day, the weekly working time has exceeded 45 hours and the daily working time fixed for that day has also been exceeded, weekly rest day pay and, in respect of the portion exceeding the daily working time, overtime pay arise together.
- So that the same working time is not paid for twice, the calculation is carried out in technical form through the court-appointed expert.
Work Where the Weekly Total Remains Below 45 Hours
If the employee has worked on the rest day but the total weekly working time remains below 45 hours, no overtime arises. Entitlement to overtime pay requires that both the statutory weekly period and, together with the work performed on that day, the normal daily working time be exceeded. In that case the only head the employee may claim is the pay corresponding to the work performed on the rest day.
For the details of overtime claims, reference may be made to our note entitled Overtime Pay Claims.
The Limitation Regime Applicable to the Claim
Weekly rest day pay is a wage claim arising from the employment contract and, by reason of that character, is subject to the statute of limitations. The period begins to run from the moment the claim becomes capable of being demanded.
The Length of the Period
Within the framework of the Labour Courts Act No. 7036 and the provisions of the Turkish Code of Obligations No. 6098, the limitation period for employee claims is 5 years. Accordingly, the employee may claim at most 5 years’ weekly rest day pay counting back from the date on which the action was brought.
The limitation period runs not as a single block for the claims as a whole but separately in respect of each item of wage; each weekly rest day payment is subject to the period running from the date on which it arose.
The Moment the Period Begins to Run
As a rule, the claim falls due on the date on which the wage ought to have been paid, and the limitation period runs from that moment. The fact that the employment relationship has come to an end does not change the starting point; the sole effect of termination is to allow accrued claims to be demanded together.
The Effect of an Application for Mediation
An application for mediation as a procedural requirement suspends the limitation period. The period does not run for as long as the process continues, and begins to run again from where it left off once the process closes. For that reason, when the application is made, how much of the period remains should also be reviewed.
The Starting Point of Interest
Interest may in principle be claimed from the moment the claim falls due. Nevertheless, both in practice and in the decisions of the Court of Cassation, the starting point of interest on employee claims is most often taken to be the date of the action or of the amendment of the claim. Statutory interest is applied according to the nature of the head claimed.
Claiming Weekly Rest Day Pay by Action
Since weekly rest day pay is an employee claim arising from the employment contract, it is claimed by an action for payment brought by the employee against the employer. Before proceeding to an action, the mandatory mediation stage must have been completed. The principal procedural points of the process are addressed below.
Mediation as a Procedural Requirement
The Labour Courts Act No. 7036 provides that applying to a mediator is a procedural requirement in actions concerning employee claims. Before going to court with a claim for weekly rest day pay, an application for mediation is therefore mandatory.
If the parties fail to agree, an action may be brought before the labour court on the basis of the final record drawn up. It should also be borne in mind that the application suspends the limitation period.
The Court with Subject-Matter and Territorial Jurisdiction
Subject-matter jurisdiction over such claims lies with the Labour Court.
As regards territorial jurisdiction, the claimant is given two options:
- the court of the place in which the employer is domiciled,
- the court of the place in which the work is performed.
In places where no labour court has been established, the dispute is heard by the Civil Court of First Instance sitting as a labour court.
The Choice Between an Action for an Indeterminate Claim and a Partial Action
Since the amount of a weekly rest day claim emerges in most cases from the employer’s records, in practice such claims are predominantly advanced in the form of an action for an indeterminate claim.
Where the amount can be established in full from the outset, the route of a partial action is also open. In an action for an indeterminate claim, the claim may be increased once the amount has been clarified by expert examination.
The Allocation of the Burden of Proof
An employee who alleges that he or she worked on the rest day, or that the rest was not granted, bears the burden of proving that fact. The evidence that may be relied on includes witness testimony, attendance records, payslips, workplace entry and exit records and other records kept by the employer.
If the payslip has been signed and appears to show that weekly rest day pay was paid, the employee must establish the contrary by documentary evidence. Where, on the other hand, a reservation of rights has been entered on the payslip, proof by any means of evidence, including witnesses, becomes possible.
The Type of Interest Applicable
Since the claim is in the nature of a wage claim, statutory interest is as a rule applied. It is legally possible to claim interest from the date on which the claim arose, that is to say fell due.
In practice, however, the starting point of interest is most often taken to be the date of the action or of the amendment of the claim.
Court Fees and Litigation Costs
Such actions are subject to an ad valorem court fee. The items to be met when the action is brought are as follows:
- the application fee,
- the advance fee,
- service and postal expenses,
- the court-appointed expert’s fee,
- where necessary, the cost of an on-site examination.
At the end of the proceedings the costs and the attorney’s fee are, as a rule, borne by the party that has lost the case.
Frequently Asked Questions
Is an employee entitled to pay even if he does not work on the weekly rest day?
Yes. Even if no work is performed on the rest day, one day’s wage is the employee’s right. Where work does fall on that day, a further day’s wage is paid in addition to the day’s wage earned without working. The claim of an employee who works on the rest day therefore corresponds in total to two days. That payment is not overtime but a separate head of pay in its own right.
May weekly rest day pay and overtime be claimed together?
They may. If the weekly working time of an employee who works on the rest day has also exceeded the statutory limit of 45 hours, the two heads may be claimed at the same time. As their legal characters differ, neither excludes the other. Only at the calculation stage does the court-appointed expert carry out a technical offsetting adjustment, so that the same period is not paid for twice.
May weekly rest day pay be treated as included within the monthly wage?
The rule is to the contrary; weekly rest day pay is not regarded as absorbed within the monthly wage. Even if the employee does not work on the rest day, he or she is entitled to one day’s wage in respect of that day. Where the employee is required to work on the rest day, an additional payment must be made. Even if a clause has been inserted in the contract to the effect that this payment is included in the salary, an additional payment must be made if work has in fact been performed on the rest day.
What remedies are open to the employee if the weekly rest day is never granted?
Where the rest is not granted at all, or granted only in part, the employee may claim weekly rest day pay. Beyond that, non-payment of the wage may create the possibility of termination for just cause in the employee’s favour under the Labour Act. In such a situation the employee may be in a position to bring the contract to an end for just cause and to claim severance pay. The order to be followed is to apply first to a mediator and, if no settlement is reached, to bring an action.
Does non-payment constitute a ground for termination for just cause?
It may. Since weekly rest day pay is a wage right arising from statute, its non-payment by the employer may constitute a ground for termination for just cause on the part of the employee. Art. 24(II)(e) of the Labour Act No. 4857 confers on the employee the power to terminate the contract with immediate effect where the wage is not paid in accordance with the statute or the contract. Since the consideration for the weekly rest day is also in the nature of a wage, non-payment of this head on a continuing basis may justify termination and give rise to a right to severance pay. In the assessment it should be borne in mind that instances of non-payment that are continuing, or significant in amount, are accepted more readily than one-off breaches of no importance. For the details of this subject, reference may be made to our note entitled In Which Cases May the Employee Terminate the Contract for Just Cause.
May an employee whose wage is not paid refrain from working?
Where certain conditions are met, he may. Under Article 34 of the Labour Act No. 4857, an employee whose wage is not paid within 20 days from the date of payment, in the absence of force majeure, may decline to perform the obligation to work. Since weekly rest day pay is also a wage claim arising from statute, it benefits from that possibility. For a detailed explanation, our note entitled The Right of an Unpaid Employee Not to Work may be consulted.
How is proof made where the payslip shows no accrual for the weekly rest day?
The absence of this head from the payslip gives rise, as a rule, to a presumption in the employee’s favour that the payment was not made. The burden of proving by documentary evidence that employee claims have been paid lies with the employer. If no accrual relating to the weekly rest day appears on the payslips, the employee may establish that he worked on the rest day, or that the rest was not granted, by any means of evidence, including witnesses. Where, on the other hand, a signed payslip clearly shows that the payment was made, those documents are treated as conclusive evidence until the contrary is proved. If a reservation of rights has been entered on the payslip, or it is proved that the document does not reflect the truth, the employee may claim the amount by witness testimony and other evidence. The Court of Cassation likewise accepts that work on weekly rest days not appearing on the payslip may be proved by witnesses and workplace records.
May a senior executive claim weekly rest day pay?
Senior executives who determine their own working hours, who do not take instructions from the employer, and whose wage is accepted as including the consideration for overtime, may as a rule not claim overtime pay. That characterisation is made separately in each case; criteria such as whether the person is genuinely to be regarded as a senior executive, whether he works subject to instructions, and the scope of his signature authority are taken into account. As regards weekly rest day pay (Labour Act, Art. 46) and national and public holiday pay (Art. 47), by contrast, the status of executive does not on its own cause a loss of rights. In the practice of the Court of Cassation it is accepted that even an employee holding the position of senior executive may become entitled to these payments if he proves that he actually worked on the holidays in question, because these heads are subject to an independent statutory wage regime separate from overtime.
The Independent Legal Assessment
Although a weekly rest day claim may look like a small head of claim when viewed file by file, calculated over a five-year period it can reach a magnitude rivalling severance and notice pay. A significant part of these disputes stems not from legal characterisation but from record-keeping: a failure to keep attendance records, to show the accrual on the payslip, or to retain shift rosters places the employer in a difficult position as regards proof.
On the employee’s side, the correct construction of the claim is decisive. In files in which weekly rest day, overtime and public holiday heads are claimed together for the same working period, how the offsetting adjustment is to be carried out directly affects the amount to be awarded.
The following matters should be given priority in a particular dispute:
- establishing, week by week, whether the rest was in fact granted as 24 uninterrupted hours
- correctly determining the wage on which the claim is to be based, by reference to the bare gross amount
- raising in good time, in weeks that overlap with overtime, the offsetting objection that will prevent a duplicated calculation
- calculating the five-year limitation cut-off by reference to the date of the mediation application
- examining, before the action is brought, the position as to accruals and reservations of rights on the payslips
- separately assessing the option of termination for just cause and severance pay where non-payment is continuing
Independent Legal provides advisory services and conducts litigation in disputes arising from employee claims, from the mediation stage through to the conclusion of the proceedings.