Petition for Annulment of the Decision Rejecting an Overtime Pay Claim

TO THE DUTY ADMINISTRATIVE COURT
OF ISTANBUL

PLAINTIFF: AK (Turkish Republic Identity Number: 12345678901)
Address: Merkez Mah. 123. Sk. No:18 D:5 Kağıthane / ISTANBUL

REPRESENTATIVE: Attorney Irem EPÇAÇAN
Address: … Cd. No:… D:… Şişli / ISTANBUL

DEFENDANT: Turkish Ministry of Health
(via Istanbul Provincial Health Directorate)
Address: … / ANKARA

SUBJECT: Our request is for the annulment of the implicit rejection by the defendant administration of our client's application dated 10/01/2024 and numbered 12345, demanding payment of the wages earned due to working 9 hours a day pursuant to the chief physician 's circular dated …/…/2020, and the revolving fund supplementary payments calculated due to overtime work after working hours, along with legal interest; and for a decision ordering the compensation of the earned payments with legal interest accruing from the date of the administrative application

NOTIFICATION DATE: Implicit rejection (Date of expiry of the 60-day response period: 10/03/2024)

EXPLANATIONS

1. My client, AK, is currently employed as a radiology technician at Istanbul Training and Research Hospital . Due to the nature of his duties, he is constantly exposed to ionizing radiation, and according to applicable legislation concerning personnel working with radiation , the maximum daily working time should be 5 hours . Article 21 of the Regulation on Radiology, Radium and Electrotherapy Establishments explicitly stipulates that working with X-rays and radium for more than 5 hours a day is prohibited. Similarly, various opinions from the Turkish Atomic Energy Authority also state that it is medically and legally inappropriate for radiology technicians to work more than 5 hours a day
2. Despite this, with the circular dated …/…/2020 and numbered 2020/… issued by the hospital's chief physician, the daily working hours of all technical personnel were implemented as 9 hours ; and my client was effectively made to work 9 hours a day for a long period within this scope . Although it has been accepted by various decisions of the Council of State that work exceeding 5 hours a day constitutes overtime for personnel working with radiation; the hospital administration did not consider my client's work exceeding 5 hours as overtime and did not pay either overtime wages or revolving fund supplementary payments for these hours .
3. The client, in his petition dated 10/01/2024 and numbered 12345 , requested that the actual work performed exceeding 5 hours during the period when he worked 9 hours a day from …/…/2020 onwards be considered overtime and compensated accordingly, and that the revolving fund supplementary payments calculated for these hours be paid to him with legal interest . However, the defendant administration did not respond to the application within the legal period; thus, the application is deemed to have been implicitly rejected in accordance with Law No. 2577 .
4. The fact that the client was forced to work beyond the maximum time allowed by legislation, under conditions that threatened their health, without being compensated for this work, workand the principle of fair wages, as with the provisions of the Constitution regarding the social rule of law and the prohibition of forced labor. The 5-hour limit, introduced to protect personnel working with radiation, was disregarded; the client was effectively forced to work excessive hours, yet received no compensation. Therefore, the defendant administration's implicit refusal unlawful in terms of its cause and purpose, and its annulment is mandatory, along with the payment of the client's entitled overtime wages and revolving fund supplementary payments with legal interest .

EVIDENCE

• Chief Physician's circular dated …/…/2020 and numbered 2020/… (letter increasing working hours to 9 hours)

• Client's service record and place of employment document

• Shift and work schedules, attendance records

• Administrative application petition dated 10/01/2024 and numbered 12345

• Time record indicating the expiration of the implicit refusal period

• Relevant precedents from the Council of State and administrative courts (if any)

• Expert examination and any other legal evidence deemed necessary.

LEGAL GROUNDS

• Constitution of the Republic of Türkiye

• Law No. 2577 on Administrative Procedure

• Regulations Concerning Radiology, Radium and Electrotherapy Establishments

• Relevant health legislation, regulations regarding overtime and additional payments

• General legal principles and precedents.

CONCLUSION AND REQUEST

For the reasons stated and explained above, and for other legal reasons that your Court may consider ex officio;

1. the client's application dated 10/01/2024 and numbered 12345, concerning the payment of wages earned due to working 9 hours a day pursuant to the circular dated …/…/2020, and the revolving fund supplementary payments to be calculated due to overtime work after working hours, along with legal interest.

2. The plaintiff requests that the defendant administration pay the client overtime wages and related revolving fund supplementary payments earned for actual work exceeding 5 hours per day, along with legal interest accruing from the date of the administrative application, January 10, 2024.

3. The court costs and attorney fees are to be borne by the defendant administration

I respectfully request and demand that a decision be made on behalf of my client.

… / … / 20…

Plaintiff's Attorney,
Irem EPÇAÇAN,
Signature

APPENDICES:

1. Power of attorney sample

2. Copy of the circular dated …/…/2020

3. Work/shift schedules

4. Application letter dated 10/01/2024

5. Precedent court decisions (if any)