INTRODUCTION

Disputes concerning overtime pay are among the areas of employment law in which the distinction between the existence of a substantive right and the ability to prove that right during judicial proceedings becomes most apparent. The mere assertion by an employee that they have exceeded the weekly working time is not, in itself, sufficient for an award of overtime pay. The alleged working hours, the working arrangements applicable during the relevant period, and any payments made must be assessed on the basis of concrete evidence.

The particular difficulty of overtime disputes arises from the fact that working arrangements are generally organized by the employer and a significant proportion of the records documenting working hours are under the employer’s control. Attendance sheets, shift schedules, payroll records, access-card data, and corporate correspondence are often documents that an employee cannot produce independently. Access to these documents may also become more difficult after the employment relationship has ended. This situation increases the importance of witness testimony, particularly in cases where written records are unavailable or their reliability is disputed.

Nevertheless, the fact that records concerning working hours are held by the employer does not automatically mean that the burden of proving the overtime claim shifts to the employer. The question of which party bears the burden of proof is distinct from the question of which party is capable of producing a particular document. The employee is required to establish that overtime work was performed, whereas the employer must prove its defence that payment was made and substantiate the records on which its own assertions are based, in accordance with procedural rules.

Furthermore, the widespread use of electronic systems in workplaces has made the assessment of evidence in overtime disputes more complex. An employee sending an email outside regular working hours, connecting to the corporate network, or receiving instructions through a messaging application may indicate that work-related activity took place at that time. However, none of these data points, taken individually, conclusively establishes the entire duration of the work performed or that all the legal requirements for overtime have been satisfied.

The central thesis of this article is that the proper resolution of evidentiary issues in overtime disputes depends not merely on the formal existence of evidence, but on what facts it establishes, for which period, to what extent, and with what degree of reliability. Accordingly, the article first examines the legal framework governing proof, then separately evaluates witness testimony, payroll records, attendance records, and electronic data, and finally addresses the approach that courts and court-appointed experts should adopt when evidence conflicts.

I. THE LEGAL FRAMEWORK GOVERNING PROOF IN OVERTIME PAY CLAIMS

1. The Concept of Overtime and the Subject Matter of Proof

Article 41 of Labour Law No. 4857 regulates the payment of increased remuneration for overtime work. As a general rule, overtime means work exceeding forty-five hours per week, subject to the conditions prescribed by law. Where the normal weekly working time is contractually set below forty-five hours, work exceeding that contractual limit but not exceeding forty-five hours per week constitutes work beyond the contractual working time. As these two concepts produce different consequences in terms of remuneration, they must not be confused when calculating the amount payable.

Article 63 of the Labour Law establishes the basic framework for the regulation of working time. Where a valid averaging arrangement applies, weekly working hours may be distributed differently across particular weeks. Accordingly, the fact that a particular working day is unusually long does not necessarily mean that all hours exceeding the normal daily working time must automatically be included in the weekly overtime calculation in the same manner. The working arrangements, the conditions governing the averaging arrangement, and the statutory limits must be examined together.

For evidentiary purposes, the dispute does not concern merely how many hours the employee was physically present at the workplace. It is necessary to determine separately the days on which the employee worked, the actual duration of the work performed, whether rest breaks were taken, the extent to which the weekly working time was exceeded, and whether remuneration for that work was paid.

For example, a record showing that an employee entered the workplace at 8:00 a.m. and left at 8:00 p.m. establishes a twelve-hour period of presence at the workplace. However, the rest breaks taken during that period, intervals in which the employee did not actually work, and the legal method for calculating working time must be determined separately. Entry and exit times constitute an important starting point for determining actual working time, but they are not always equivalent to the duration of overtime.

2. The Distinction Between the Burden of Proof and the Obligation to Produce Evidence

Pursuant to Article 190 of the Code of Civil Procedure No. 6100, unless otherwise provided by law, the burden of proof rests with the party seeking to derive a legal consequence in its favour from the fact asserted. Under this rule, an employee claiming to have performed overtime is, as a general rule, required to prove that fact.

By contrast, the employer’s defence that overtime remuneration has been paid is based on a different factual assertion. Once the employee establishes that overtime work was performed, the employer must substantiate its payment defence through payroll records, bank records, or other appropriate documentation.

In its judgment dated 6 December 2018, numbered 2015/25462 E. and 2018/22543 K., the 9th Civil Chamber of the Court of Cassation examined a dispute in which a claim for overtime pay could be established through witness testimony. The legal assessment of the judgment treats the establishment of overtime work and proof that remuneration for such work has been paid as separate issues.

The legal significance of this judgment lies in demonstrating that proof of overtime work must be distinguished from the employer’s defence of payment. The employer’s assertion that payment was made and the employee’s assertion that overtime was performed do not concern the same evidentiary issue.

Nevertheless, the employer’s possession of the relevant records does not automatically alter the burden of proof. The burden of proof must be distinguished from the obligation to produce evidence. The fact that the employee bears the burden of proof does not eliminate the employer’s obligation to submit to the court records in its possession that are relevant to the dispute.

Article 219 of the Code of Civil Procedure regulates the parties’ obligation to produce documents in their possession on which either they or the opposing party rely as evidence. Article 220 addresses the procedure and consequences relating to the production of documents. Under these provisions, an employee may request that the court obtain specific working schedules, electronic entry and exit records, or attendance records held by the employer.

However, it is important to identify the requested documents as specifically as possible. The request should indicate which record system is concerned, the relevant date range, and the fact that the evidence is intended to establish. Requesting all records presumed to be in the employer’s possession without distinction may leave the scope of the evidence and its connection to the dispute unclear.

3. The Employer’s Record-Keeping Obligations and Evidentiary Difficulties

The employer’s obligation to maintain regular records concerning working hours is not merely a matter of workplace administration. It is also important in terms of obligations under employment law and the resolution of potential disputes. Article 37 of the Labour Law concerns wage statements, while Article 41 contains provisions concerning overtime remuneration. These provisions are relevant to documenting wages and remuneration for work, although the scope of each must be assessed separately.

The employer’s failure to maintain particular records or submit them to the court does not, in every case, require the employee’s overtime claim to be accepted as true. Nevertheless, where records that may be decisive in resolving the dispute are under the employer’s control and are not produced without a valid reason, that circumstance cannot be disregarded when evaluating the evidence.

For example, if the employer states that employees’ entry and exit times are monitored through a card-based system but fails to submit the records for the period in dispute, the court should examine whether the records actually exist, why they were not produced, and how they relate to the other evidence. The employee’s claim, supported by witness testimony, must be assessed together with the employer’s unexplained failure to produce the records.

In this context, the consequences relating to the production of documents under Article 220 of the Code of Civil Procedure may arise, depending on the circumstances of the case. However, failure to produce a document should not be treated as automatically changing the burden of proof. The court must first determine whether the requested document is sufficiently identified and relevant to the dispute, who possesses it, and the reasons for its non-production.

II. THE EVIDENTIARY VALUE AND LIMITATIONS OF WITNESS TESTIMONY

1. The Function of Witness Evidence in Overtime Disputes

Witness evidence is an important means of proof in overtime disputes, particularly where written records are unavailable or do not fully reflect the working arrangements. A witness may inform the court of their observations concerning the employee’s working hours, workplace practices, and the period during which overtime was performed.

Nevertheless, witness testimony concerning past events depends on human perception and the capacity to remember. Accordingly, the witness’s position at the workplace, whether they worked the same shift as the claimant, the dates during which they worked together, and whether they personally observed the claimant’s working hours are important considerations.

The fact that a witness worked at the same workplace is not sufficient on its own. If the claimant worked the day shift while the witness worked the night shift, or if they worked in different departments, the extent to which the witness could have known the claimant’s working hours must be examined separately.

2. Firsthand Knowledge and the Period of Joint Employment

One of the principal factors determining the evidentiary value of witness testimony is the source of the witness’s knowledge. A witness who personally observed when the claimant started and finished work and on which days they worked is in a different position from a witness who merely describes general workplace practices.

In its judgment dated 9 May 2023, numbered 2023/2223 E. and 2023/6798 K., the 9th Civil Chamber of the Court of Cassation emphasized the importance of the witness’s knowledge of workplace arrangements and direct knowledge of the claimant’s working hours.

This approach demonstrates that the mere presence of a witness at the workplace is insufficient. There must be a genuine connection between the witness’s knowledge and the fact sought to be established.

The fact that a witness worked alongside the claimant between 2019 and 2021 does not mean that the witness also knows the working arrangements applicable between 2022 and 2024. Accordingly, witness testimony should be limited to the period during which the witness worked with the claimant. Otherwise, a limited observation may improperly be extended to the entire period of employment.

3. Testimony of Witnesses with Adverse Interests

It is common in practice for a person who has brought an employment claim against an employer to testify in another employee’s case. The existence of a claim against the employer does not automatically render that person’s testimony inadmissible or invalid. However, it is necessary to assess whether the witness and the claimant share a common interest and whether the testimony is supported by other evidence.

The judgment of the 9th Civil Chamber of the Court of Cassation dated 15 May 2023, numbered 2023/4113 E. and 2023/7144 K., concerns a claim for overtime pay brought together with a claim for non-pecuniary damages arising from psychological harassment. The specific circumstances of the case must be taken into account when assessing the witnesses’ periods of joint employment and any relationship of interest.

The important point is that a witness’s having brought a claim against the employer must not become an absolute ground for excluding their testimony. If the testimony is consistent with workplace records, the statements of other witnesses, or objective facts concerning the nature of the work, these supporting elements must be evaluated together.

Similarly, testimony from witnesses who remain employed by the employer should not automatically be given greater weight merely because their employment relationship continues. The witness’s existing relationship of dependency on the employer, the level of detail in the testimony, and its consistency with the other evidence must be examined in the circumstances of the particular case.

4. Conflicting Witness Testimony and Determining the Working Arrangements

Even witnesses who worked at the same workplace may give different accounts of working hours, rest breaks, and shift arrangements. This does not necessarily mean that one of the witnesses has made a false statement. The differences may arise from working during different periods, serving in different departments, or having different opportunities to observe the relevant events.

In such circumstances, the court must determine which period each witness is describing, the extent of the witness’s knowledge of the claimant’s duties, and whether the testimony is consistent with the other evidence. If one witness states that the claimant worked every day between 8:00 a.m. and 8:00 p.m., while another states that employees left earlier on certain days, the working arrangements must be investigated in greater detail.

It is particularly problematic to extend the testimony of a single witness to an entire lengthy employment period. Workplace management, shift systems, or the intensity of the work may have changed over time. The periods about which each witness has knowledge must therefore be identified, and the calculation must be limited accordingly.

5. Calculations Based on Witness Testimony and Equitable Deductions

Where the duration of overtime is determined on the basis of witness testimony, the court must take into account the continuity of the working arrangements and the limits of the witness’s observations. An equitable deduction in calculations based on witness testimony is not a fixed percentage that must automatically be applied in every case. Whether a deduction is necessary and the amount of any deduction must be assessed in light of the established working arrangements and the evidence underlying the calculation.

Calculations based on written records should not be treated in the same manner as calculations based on witness testimony. Where reliable attendance records or electronic data clearly establish daily working hours, the uncertainty associated with estimates based on witness testimony may not exist to the same extent.

The judgment of the 22nd Civil Chamber of the Court of Cassation, numbered 2017/14145 E. and 2018/20211 K., is reported to distinguish, in this respect, between calculations based on attendance records and those based on witness testimony.

An equitable deduction is not a means of assuming that unproven working time existed or of compensating for insufficient evidence. The court must first determine which overtime has been proven and then assess the uncertainties arising from the nature of a calculation based on witness testimony.

III. THE EVIDENTIARY VALUE OF PAYROLL RECORDS AND EMPLOYER DOCUMENTATION

1. The Legal Nature of Payroll Records

A payroll record is an important document showing the wage components accrued in favour of an employee and the payments recorded. Article 37 of the Labour Law requires the employer to provide the employee with a statement showing the calculation of their wages. However, the evidentiary value of a payroll record derives not merely from its title but from its content, signature status, overtime accruals, and relationship with payment records.

Whether a payroll record is signed and whether it includes an overtime payment entry are two separate matters. If an employee has signed a payroll record that contains no overtime accrual, that fact alone does not establish that no overtime was performed. By contrast, a different assessment may apply where the payroll record specifies the overtime hours and corresponding remuneration, bears the employee’s signature, and contains no reservation of rights.

The legal effect of overtime accruals shown in signed payroll records containing no reservation of rights is significant in the case law of the Court of Cassation. Decisions have accepted that the accruals recorded in a signed payroll record have been paid unless the falsity of the document is alleged and proven. However, this principle should not be transformed into a mechanical rule that produces the same result for every payroll record regardless of the circumstances of the particular case.

2. Signed Payroll Records Without Reservation of Rights

Where a signed payroll record contains an accrual for a specified amount of overtime, and the employee alleges that they worked more overtime during the same period, the nature of the payroll record and the relevant principles established in case law must be examined. The established approach of the Court of Cassation indicates that the requirement for written evidence may arise when an employee seeks to prove overtime exceeding the hours stated in a signed payroll record that contains no reservation of rights.

This approach depends on the information contained in the payroll record. If the record expressly specifies the overtime hours, the dispute no longer concerns solely whether overtime was performed, but also how work exceeding the recorded hours can be proven.

3. Payroll Records Containing a Reservation of Rights

A reservation of rights is a statement made by an employee when signing a payroll record indicating that they dispute the amount or working time recorded as not fully reflecting the actual circumstances. The presence of such a reservation may facilitate the employee’s ability to claim overtime exceeding the amount recorded in the payroll and to support that claim with appropriate evidence.

Nevertheless, a reservation of rights does not automatically prove the duration of the overtime claimed by the employee. The reservation must be assessed together with the particular aspect of the payroll record to which the employee objected. For example, an objection to the overtime hours recorded in the payroll does not establish the same fact as an objection stating that the amount deposited into the employee’s bank account was insufficient.

The court must examine the content of the payroll record, the scope of the reservation of rights, and any bank payments together. It must separately determine whether the accrual recorded in the payroll was paid. Where the employee alleges that the overtime performed exceeded the period recorded in the payroll, the court must explain which evidence establishes that difference.

4. Unsigned Payroll Records, Bank Records, and Nominal Overtime Accruals

Unsigned payroll records cannot be assumed to have the same legal effect as signed payroll records. An unsigned payroll record does not, by itself, establish that the employee accepted its contents. Nevertheless, it may still be evaluated as evidence together with other records.

A bank record may establish the amount deposited into an employee’s account on a particular date. However, the wage components to which the payment relates cannot always be determined from the bank receipt alone. The bank record must be matched with the payroll record, and the payment descriptions must be examined.

For example, if a payroll record shows an overtime accrual of TRY 5,000 but the total wage deposited into the employee’s bank account is lower, it cannot immediately be concluded that the employer paid the entire accrued amount. Other wage components, deductions, and payment dates must be examined.

Similarly, the fact that the same nominal overtime accrual appears in the payroll every month does not automatically invalidate the employer’s defence that payment was made. However, it must be investigated whether these accruals reflect the actual working arrangements. If other evidence establishes that the employee performed substantially more overtime, the effect of the amounts recorded in the payroll must be determined separately.

5. Attendance Records and Shift Schedules

Attendance records are documents intended to establish the days and hours during which an employee worked. Signed attendance sheets, regular shift schedules, and daily working-time records constitute important evidence in overtime disputes.

However, the evidentiary value of attendance records depends on how they were prepared and their reliability. The date on which the records were created, whether they were subsequently altered, who maintained them, and whether they are consistent with other systems are all important considerations.

A schedule prepared unilaterally cannot be regarded as worthless merely because it was prepared by the employer. Conversely, not every record prepared by an employer automatically acquires the status of conclusive evidence. Its content and reliability must be evaluated together with the other evidence.

If the employer’s shift schedule records working hours as 9:00 a.m. to 6:00 p.m., but card-access records regularly show the employee remaining at the workplace until 9:00 p.m., the discrepancy between the records must be investigated. The time spent at the workplace must be distinguished from the time actually spent working. Rest breaks, waiting periods after the work has ended, and duties performed outside the workplace must also be considered where relevant.

6. Entry and Exit Records and Other Workplace Documentation

Card-access records, turnstile data, security logs, tachographs, and similar records may show an employee’s entry and exit times or particular activities. The evidentiary value of these records depends on what the relevant system actually measures.

For example, turnstile data may show when an employee entered and left the workplace, but it does not directly prove that the employee worked continuously throughout that period. Similarly, a record showing that an employee was not present at the workplace after a particular time may not exclude work performed outside the workplace, depending on the nature of the job.

The court must therefore determine the technical function of the record and its role within the working arrangements. If a card-access system records only access to the building, the recorded time cannot automatically be equated with working time. Conversely, if it is established that the system is used in connection with the beginning and end of work, that its records are maintained regularly, and that they are corroborated by other evidence, the records may provide a strong basis for the calculation.

IV. THE ROLE OF ELECTRONIC EVIDENCE IN OVERTIME DISPUTES

1. The Status of Electronic Data as Evidence

Electronic data constitute important evidence capable of revealing how the employment relationship is carried out in practice. Corporate emails, instructions issued for work purposes, correspondence through messaging applications, remote-working systems, and digital work-tracking records may contain indications that an employee performed work-related activities at particular times.

Article 199 of the Code of Civil Procedure includes within the concept of a document written or printed texts, instruments, drawings, plans, sketches, photographs, films, audio or video recordings, electronic data, and similar information carriers capable of proving the facts in dispute. This provision enables electronic data to be assessed under the law of evidence.

Nevertheless, the fact that electronic data qualify as a document does not establish that their contents are accurate or that they prove every alleged fact. The identity of the person who created the data, the system from which they were obtained, whether their integrity has been preserved, and their relevance to the dispute must be assessed separately.

2. Emails and Messaging Records

An email sent outside regular working hours may constitute evidence that an employee was engaged in a work-related activity at that time. However, the time at which the email was sent must be distinguished from the conclusion that the employee began working at that time or worked throughout the entire night.

For example, an email showing that a manager sent an employee a report to be delivered the following day at 10:30 p.m. may establish that a work instruction was issued outside regular working hours. However, whether the employee immediately prepared the report, how long the work took, and whether it could have been postponed until the following day must be established through other evidence.

Conversely, if correspondence continuing over the same period, file version histories, delivery records, and the employer’s responses are examined together, the claim that actual work was performed for a particular period may be strengthened. The evidentiary value arises not merely from the timestamp of a single message but from its relationship with other data.

Correspondence through messaging applications such as WhatsApp must be assessed in a similar manner. A message showing that the employer assigned a task outside working hours does not have the same meaning as data showing only that the employee read the message. The context of the message, the surrounding conversation, the nature of the task, and other data concerning the actual duration of the work must be examined.

3. Server Logs, VPN Sessions, and Digital Work-Tracking Systems

The expansion of remote working has increased the importance of digital data concerning working time. VPN connection logs, server access records, software usage logs, and digital work-tracking systems may show that an employee interacted with corporate systems at particular times.

However, an active VPN session does not, by itself, prove that the employee worked continuously throughout the session. Similarly, the fact that a computer remained switched on or that a particular file remained accessible does not conclusively establish the duration of actual work.

Conversely, where file operations performed during particular time intervals, task records, meeting attendance data, and employer instructions corroborate one another, these data may form a stronger body of evidence for determining working time.

Accordingly, the technical nature of electronic records should be clarified with the assistance of an expert where necessary. The expert’s role is to explain what the records show from a technical perspective and to establish the relationships between the data. The final assessment of whether those records legally prove a claim for overtime pay remains within the jurisdiction of the court.

4. Assessment of Screenshots

Screenshots may be used to demonstrate the content of electronic correspondence or system records. However, submitting a screenshot alone does not invariably guarantee the integrity or accuracy of the underlying record.

For example, a screenshot showing only the time at which a message was sent may provide incomplete context if it does not include the preceding and subsequent messages. The identity of the sender, ownership of the account, whether the image has been altered, and whether the original data can be accessed must be examined.

Where necessary, the court may request production of the original source of the correspondence, require that it be evaluated together with other messages, or order a technical examination. This approach does not mean that screenshots should be rejected in advance; rather, it aims to improve the verifiability of the evidence.

5. The Distinction Between Electronic Signatures and Ordinary Electronic Records

Law No. 5070 on Electronic Signatures contains specific provisions concerning the legal consequences of secure electronic signatures. However, not every electronic record constitutes a document bearing a secure electronic signature. The mere fact that an email, message, or system log exists in electronic form does not automatically confer upon it the legal effect of a document signed with a secure electronic signature.

This distinction is important when evaluating electronic evidence. The methods used to verify a document bearing a secure electronic signature may differ from those used to verify an ordinary messaging record. Both types of data may be examined as evidence, depending on the circumstances of the case, but their legal consequences should not be treated as identical.

6. Lawful Acquisition and the Protection of Private Life

When electronic evidence is obtained and used, the limits arising from the protection of private life, the confidentiality of communications, and the protection of personal data must be respected. The existence of an employment relationship does not grant an employer unlimited authority to examine all of an employee’s private communications.

The purpose, method, and scope of obtaining the evidence are important. Work records maintained by the employer within corporate systems cannot be assessed within exactly the same legal framework as private correspondence held in an employee’s personal account.

Nevertheless, the lawfulness of obtaining data must be distinguished from their evidentiary value in terms of content. While assessing the conditions under which evidence was obtained and whether it may be used under the applicable legislation, the court must separately examine whether the data genuinely establish the working time in question.

V. CONFLICTING EVIDENCE, EXPERT EXAMINATION, AND EQUITABLE DEDUCTIONS

1. Joint Assessment of the Evidence

The existence of multiple items of evidence in overtime disputes does not necessarily mean that they support the same conclusion. Payroll records, attendance records, witness testimony, and electronic records may establish different facts. The court’s task is not merely to compare the evidence numerically, but to determine which facts each item establishes and to what extent.

For example, if witnesses state that the claimant worked every day between 8:00 a.m. and 8:00 p.m., whereas attendance records show working hours from 9:00 a.m. to 6:00 p.m., it is insufficient simply to give precedence to either the witnesses or the attendance records. The court must investigate who maintained the attendance records, whether they were signed, whether they are consistent with electronic entry and exit data, and the scope of the witnesses’ observations.

Similarly, where a payroll record contains an overtime accrual but the bank payment is lower, the employer’s payment defence should not be accepted solely on the basis of the payroll record. The court must determine how much of the accrued amount was paid and which wage components are covered by the bank record.

2. Practical Dispute Scenarios

Scenario One: Witness testimony confirms overtime, but the payroll contains no overtime accrual.

The absence of an overtime accrual in the payroll does not, by itself, establish that no overtime was performed. It must be examined whether the witnesses worked during the same period and under the same working arrangements. Their testimony should be compared with attendance records, shift schedules, and electronic data. If the employee proves that overtime was performed, the employer’s payment defence must be assessed separately.

Scenario Two: Attendance records show normal working hours, while electronic correspondence indicates work-related activity outside regular hours.

Electronic correspondence may establish that work-related activity occurred at a particular time, but it may not independently establish the entire duration of the work. The court should examine the continuity of the correspondence, the nature of the work, delivery records, and the reliability of the attendance records. Reaching a decision solely on the basis of attendance records without resolving the conflict between the records may result in an incomplete examination.

Scenario Three: The payroll contains an overtime accrual, but the bank payment differs.

The payroll and bank records must be compared to determine the period to which the accrual relates and which wage components are covered by the payment. If the employer cannot prove that the amount claimed to have been paid was actually paid, full payment should not be presumed solely on the basis of the accrual recorded in the payroll.

Scenario Four: Witnesses report different working hours.

The periods and shifts during which the witnesses worked must be determined. If the witnesses have knowledge of different periods, their testimony should not be applied uniformly to the entire employment period. Where necessary, separate calculations should be made for different periods.

Scenario Five: Entry and exit records establish presence at the workplace.

The period during which an employee remains at the workplace may differ from the period during which they actually work. Rest breaks, waiting periods, personal activities, and duties performed outside the workplace must be distinguished. Conversely, a record showing absence from the workplace does not, by itself, establish that no work was performed where the job involves remote work or field duties.

Scenario Six: A witness has knowledge of only part of the employment period.

A witness’s statements concerning periods during which they did not work alongside the claimant should be treated with caution unless supported by another source of information. The calculation should be limited to the period about which the witness has direct knowledge, or other evidence concerning different periods should be investigated.

Scenario Seven: Electronic records indicate work-related activity at a particular time.

The timestamp of an email or file record may indicate that work-related activity occurred at a particular time. However, the data do not automatically establish how long the activity lasted. The court should examine whether there is continuity between multiple records, the nature of the work performed, and whether the records are corroborated by other evidence.

The common feature of these scenarios is that the existence of one item of evidence does not automatically invalidate another. The court must determine the scope of what each item establishes, investigate the reasons for any inconsistencies, and explain its conclusions in a reasoned judgment.

3. The Limits of Expert Examination

Expert examination is often important when calculating overtime claims. However, an expert’s role is not to decide, in place of the court, whether the evidence is legally valid. The expert must calculate the amount payable within the framework of the working arrangements and evidentiary findings accepted by the court. Where technical examination is required, the expert should explain the contents of the records and their effect on the calculation.

The court should not request a general calculation from an expert before determining which working arrangements have been proven. Otherwise, the expert may base the calculation on conflicting witness statements or records whose reliability is disputed.

Where the case file supports more than one possible set of working arrangements, alternative calculations may be useful. For example, one calculation may be based on signed and reliable attendance records, while another may rely on witness testimony for periods in which no records are available. The court should be able to identify clearly which evidentiary findings underpin each calculation.

The expert report should present daily working hours, rest breaks, total weekly working time, overtime remuneration, and the deduction of payments already made in a manner that allows the calculation to be reviewed. Merely stating a total amount makes it more difficult for the parties to verify the calculation and for the court to assess the basis of the report.

4. Rest Breaks and Verification of Calculations

Pursuant to Article 68 of the Labour Law, rest breaks are not counted as working time where the statutory conditions are satisfied. Accordingly, rest breaks must be separately considered when calculating the difference between the total time an employee spends at the workplace and the time actually spent working.

However, the fact that a rest break is recorded on paper does not, by itself, prove that it was actually provided. If the employee alleges that they continued working during the rest break, the working arrangements, the nature of the work, and the other evidence must be examined. Conversely, spending a long period at the workplace does not automatically establish that no rest breaks were taken.

The expert must explain the data on which the calculation of rest breaks is based, and the court must verify whether that assumption is consistent with the evidence in the case file. A wage calculation based on an incorrectly determined working period may produce a legally incorrect result even if the arithmetic itself is accurate.

5. Distinguishing Equitable Deductions from Evidentiary Issues

An equitable deduction may arise in overtime claims calculated on the basis of witness testimony in order to address the potential excessiveness resulting from an assumption that the same working arrangements continued uninterrupted over an extended period. However, such a deduction is not a means of treating unproven working time as established or remedying an incomplete examination.

Where written records establish working time clearly and in a verifiable manner, a deduction specific to the uncertainty inherent in calculations based on witness testimony need not be applied in the same way. Indeed, the accessible source concerning the judgment of the 22nd Civil Chamber of the Court of Cassation, numbered 2017/14145 E. and 2018/20211 K., reports that applying an equitable deduction to a period calculated on the basis of attendance records was considered erroneous.

This distinction also demonstrates that an equitable deduction cannot be tied to a fixed percentage. The court must explain why a deduction is necessary, which calculation based on which evidence it applies to, and which circumstances were taken into account in determining the percentage.

VI. PRACTICAL ISSUES IN LIGHT OF THE CASE LAW OF THE COURT OF CASSATION

1. Proof of Overtime and the Defence of Payment

The judgment of the 9th Civil Chamber of the Court of Cassation, numbered 2015/25462 E. and 2018/22543 K., is important because it identifies two distinct stages of proof in overtime disputes. The first stage concerns determining whether the employee performed overtime. The second concerns examining whether remuneration for the established work was paid.

In the judgment, it was considered erroneous to dismiss the claim on the basis that payment had been made solely because of witness testimony, where the performance of overtime could be established through that testimony. The court explained that the overtime claim should be calculated, the payment documents should be taken into account, and a decision should be rendered regarding the amount determined to remain unpaid.

This judgment clarifies the allocation of the burden of proof. The employer’s defence that no overtime was performed differs from its defence that remuneration was paid. When assessing the first defence, the court should focus on evidence concerning the working arrangements; when assessing the second, it should examine the payment documents.

2. Assessment of Witness Testimony

An accessible secondary source concerning the judgment of the 9th Civil Chamber of the Court of Cassation dated 9 May 2023, numbered 2023/2223 E. and 2023/6798 K., emphasizes the importance of a witness’s knowledge of workplace arrangements and direct knowledge of the claimant’s working hours. The same source also reports that testimony from witnesses who share a common interest should be supported by other evidence or circumstances.

The practical implication of this approach is that whether a witness has brought a claim against the employer should not be treated as the sole determining factor. The source of the witness’s knowledge, the period of joint employment, the level of detail in the testimony, and its consistency with the other evidence must be considered together.

The judgment of the 9th Civil Chamber of the Court of Cassation dated 15 May 2023, numbered 2023/4113 E. and 2023/7144 K., concerns a dispute involving a claim for overtime pay and a claim for non-pecuniary damages arising from psychological harassment. The specific circumstances of the case must be taken into account; a general rule for assessing witness testimony should not be derived solely from the operative part of the judgment.

3. Signed Payroll Records and Actual Working Arrangements

In the case law of the Court of Cassation concerning signed payroll records, particular attention is given to the legal effect of the overtime hours and accruals recorded in those documents. The reasoning in the judgment numbered 2015/25462 E. and 2018/22543 K. also includes the principle that an allegation of overtime exceeding the amount stated in a signed payroll record containing no reservation of rights must be proven by written evidence.

Nevertheless, allegations that the payroll record does not reflect the actual working arrangements must also be examined. Whether the accruals recorded in the payroll are merely nominal, whether the employee’s actual wages are reflected in the payroll, and whether the payment records are consistent with the payroll must be assessed in light of the circumstances of the particular case.

The judgment of the 9th Civil Chamber of the Court of Cassation, numbered 2022/7219 E. and 2022/8488 K., available in accessible case-law databases, addresses allegations that overtime exceeded the hours stated in signed payroll records and the effect of the recorded accruals on the calculation. However, no definitive assessment of the detailed reasoning should be made without independently verifying the full text of the judgment.

4. Attendance Records and Equitable Deductions

An accessible source concerning the judgment of the 22nd Civil Chamber of the Court of Cassation, numbered 2017/14145 E. and 2018/20211 K., indicates that a distinction was drawn between periods covered by attendance records and periods assessed on the basis of witness testimony. The application of an equitable deduction specific to calculations based on witness testimony was not considered appropriate for overtime established through written records.

This distinction demonstrates that an equitable deduction is a separate issue arising after the evidence has been assessed. The court must first determine the evidence on which it accepts the working time and then consider whether a deduction is necessary in light of the nature of the calculation and the circumstances of the case.

5. Conclusions Arising from a Joint Assessment of the Case Law

The common feature of the judgments examined is that no single item of evidence resolves every issue in an overtime dispute. Witness testimony may establish that work was performed, but it does not, by itself, prove that payment was made. A signed payroll record may constitute strong evidence regarding the accruals it records, but its scope and relationship with other records remain important. An attendance record may show working hours, but whether it establishes the actual duration of work must be examined separately.

The same approach should be adopted with respect to electronic records. Unless the full text of a judgment directly addressing the determination of working time through electronic records has been verified, general evidentiary principles should not be attributed to a specific precedent concerning electronic evidence.

VII. PRACTICAL ASSESSMENT AND RECOMMENDATIONS

1. For Counsel Representing Employees

When preparing a claim for overtime pay, the working arrangements should be described specifically rather than in general terms. The days and hours on which the employee worked, how rest breaks were taken, and the periods during which the working arrangements changed should be explained.

Merely listing the names of witnesses is not an adequate evidentiary strategy. The periods during which the witnesses worked alongside the claimant, the working hours they observed, and the facts they are expected to establish should be identified.

Where the production of records held by the employer is requested, the request should be made as specifically as possible. For example, turnstile records, shift schedules, attendance sheets, or activity records from a work-tracking system relating to a particular period should be identified separately.

For electronic evidence, rather than submitting screenshots alone, the relevant records should, where possible, be prepared in a manner that establishes the context and source of the correspondence. The relationship between the time at which a message was sent and the actual duration of the work must be explained.

2. For Counsel Representing Employers

The most important consideration for employers is to maintain records concerning working hours in a regular, consistent, and verifiable manner. Consistency between payroll records, bank payments, attendance records, and electronic entry and exit records facilitates proof in the event of a dispute.

Where an overtime accrual is recorded in the payroll, the relevant period and the number of overtime hours should be clearly specified. Payments should be matched with bank records, and the connection between the records and the relevant period should be established.

When challenging the reliability of witness testimony, counsel for the employer should not rely solely on the witness’s relationship with the claimant or the existence of a claim against the employer. The focus should be on whether the witness knows the claimant’s working arrangements, the period during which they worked together, and the consistency of the testimony with the other evidence.

In workplaces where electronic records are used, the function of the systems and the manner in which records are maintained should be capable of explanation. A VPN connection or card-access record should not be assumed to demonstrate working time directly; the technical function of the system must be established concretely.

3. For Courts

The court’s first task is to define the scope of the dispute and identify the facts that must be proven. Where an overtime claim concerns particular periods and working arrangements, the relevant evidence must be assessed separately for each period and arrangement.

Where witness testimony conflicts with written records, giving precedence to a single item of evidence without investigating the cause of the inconsistency may result in an incomplete examination. Where necessary, records held by the employer should be obtained, explanations should be sought from the parties, and a technical examination should be conducted.

An expert report should not replace the court’s assessment of the evidence. The report should identify, in a verifiable manner, the working arrangements on which it is based, how rest breaks were calculated, how payment documents were assessed, and the grounds for any deductions applied.

The reasoned judgment should explain the evidence supporting the accepted working time and the rejection of the allegations that were not accepted. This approach not only improves the reviewability of the decision but also enables the parties to understand why particular facts were considered proven or unproven.

CONCLUSION

Proof in overtime disputes is too multifaceted to be reduced to a single document or witness statement. The employee’s obligation to prove that overtime was performed and the employer’s obligation to prove that remuneration for such work was paid are separate matters. Similarly, the fact that an item of evidence qualifies as a document does not mean that it establishes every aspect of the alleged working time.

Witness testimony is an important means of proof, particularly where written records are unavailable. Nevertheless, the witness should have worked alongside the claimant during the relevant period, possess direct knowledge of the working arrangements, and provide testimony consistent with the other evidence. Testimony from witnesses who have brought claims against the employer should not automatically be excluded; their relationships of interest and any corroborating evidence must be assessed together.

With respect to signed payroll records, attendance sheets, and bank records, the content of the document, its signature status, the nature of the recorded accruals, and its relationship with payment are important. Entry and exit records may establish the time spent at the workplace, but they do not invariably establish the actual duration of work conclusively.

Electronic data constitute an important category of evidence in overtime disputes. However, an email sent outside regular working hours, an active VPN session, or a messaging record does not, by itself, prove the entire duration of the work. The source, integrity, context, and relationship of these records with the other evidence must be examined.

Ultimately, a sound judicial assessment of overtime disputes requires determining which facts each item of evidence establishes, for which period, and to what extent. The court’s task is not merely to rank evidence according to its formal characteristics, but to explain the relationships between the different items of evidence, resolve inconsistencies, and set out its conclusions in a reasoned and reviewable judgment.