In labour disputes, it is important to determine which party bears the burden of proof depending on the nature of the specific dispute — whether it concerns wage claims, procedures for termination, determination of overtime work and wage entitlement, or other issues arising under Labour Law.

Proof of Existence of the Employment Contract

An employment contract exists where a worker agrees to perform dependent work and the employer undertakes to pay wages. The employee bears the burden of proving the existence and essential elements of the contract. The proof may be supported by a written employment contract or, if no written contract exists, by witness testimony or other evidence.

Proof of the Type of Employment Contract

Although most employment contracts are of indefinite duration, fixed-term contracts also exist. The employer is generally presumed to bear the burden of proving the existence of such fixed-term contracts.

Proof of Working Time

The employee must prove the start and end dates of employment. Documentary records — such as salary payments via bank, Social Security Institution (SGK) records, and employment entry notifications — qualify as written evidence. In the absence of written evidence, testimony from co-workers may be used. Because the existence of an employment relationship concerns public order, the judge also has a duty to investigate these facts ex officio.

Proof of Wages

The employee bears the burden of proving the amount of wages owed. Payrolls, bank payment records, and other written documents are primary evidence. Wages paid in foreign currency must also be proven with written evidence.

Proof of Changes in Work Conditions

If working conditions change over time, the employee must prove that such changes occurred within six working days. Silence or failure to object within this period means the change is not valid against the employee.

Proof of Equal Treatment / Non-Discrimination

The employee generally bears the burden of proving that the employer violated the prohibition against discrimination. However, under Labour Law Article 5/7, once the employee establishes a strong likelihood of discrimination, the burden shifts to the employer to prove that no such violation occurred.

Proof in Cases of Union Discrimination

For workers outside the scope of job security provisions, the employer must prove that union discrimination did not occur. For workers within the scope of job security, the burden remains on the employee to prove discrimination.

Proof of Overtime Work

The employee must prove that overtime work was performed. Workplace records and notices showing overtime schedules constitute written evidence. If no written evidence exists, co-worker testimonies may be considered. Witness testimony is only admissible if the witness worked at the same time in the same workplace.

Burden of Proof in Contract Termination

a. Proof of Which Party Terminated the Contract

It is critical to prove who terminated the employment contract, as this affects the calculation of entitlement claims (e.g., severance, notice pay). Evidence such as termination letters, records, and witness statements are relevant.

b. Proof of Valid Termination

When termination is alleged, the employer bears the burden of proving the validity of the termination under applicable legal requirements.

c. Proof of Justified Termination

If the employer claims to have terminated for a justified reason, the employer must prove it. If the employee alleges justified termination, the burden may vary based on the specific reason (e.g., non-payment of wages), and the employer may need to prove that the wages were paid.

d. Proof of Termination with Notice

The party that gave notice must prove compliance with notice requirements, usually through written evidence.

Annual Leave – Proof

The employer must prove that the employee used the annual leave to which they were entitled. Written evidence is essential; witness testimony alone is generally not sufficient.

Proof of Settlement Statements ("İbraname")

Statements signed at the start of employment have no legal effect. The employee bears the burden of proving that any purported settlement was signed at the start of employment. Similarly, the employee must prove that any consent given was genuinely voluntary.

Conclusion

In summary, the burden of proof in labour disputes varies by subject matter. Common themes include:

• Employee's burden: existence of contract, working time, wages, changes in work conditions, excess hours, and proof of discriminatory conduct (initially).
• Employer's burden: existence of certain types of contracts (e.g., fixed-term), validity of contract termination, notice compliance, and, when shifted, proof of non-discriminatory conduct.
• In specific situations — such as discrimination where the employee makes a prima facie case — the burden shifts to the employer.