T.C.
SUPREME
GENERAL ASSEMBLY OF LAW
BASE NO: 2015/22-1608
DECISION NO: 2018/448
DATE OF DECISION: 7.3.2018
RETURN TO MILITARY SERVICE 18 ET SEQ. OF THE LABOR CODE OF NON-HIRED WORKERS. HE CANNOT FILE A CASE FOR RETURN TO WORK BASED ON HIS PROVISIONS.
SUMMARY:1.) Return to military service 18 vd of the Labor Code of non-hired workers. he cannot file a case for return to work based on his provisions..
2.) if the employer does not start work, he pays compensation in the amount of 3 monthly wages to the former employee who has requested to be hired.(Job K.31/4)
“The return to military service is provided by Article 18 of the Labor Code of non-employed workers. he cannot file a case for return to work based on his provisions. He can’t take advantage of job security. Because the employment contract has been terminated due to military service, the employment contract is not suspended during active military service, and in this case, there is no mention of the termination of the employment contract by the employer, which does not have a return to military service”
“Not an administrative fine, but a compensation sanction is provided for the employer who does not fulfill his obligation to enter into an employment contract with former employees who have completed a military or legal assignment, but does not hire them even if they have conditions. 31 of the Law, indeed. if the employer does not fulfill his obligation to conclude an employment contract, even if there are the conditions required in accordance with the fourth paragraph of his article, he pays compensation in the amount of three months’ wages to the former employee who requests to be hired.”
At the end of the trial between the parties for the case of “Decommissioning”, Ankara 10. 07.03.2014 day and 2013/1747 E. On the acceptance of the case issued by the Employment Court-2014/242 K. 22. upon request of the defendant’s attorney to examine the decision No. 22 on appeal. The day of 05.05.2014 of the Legal Department and 11565/2014 of the E.-2014/11387 K. by his numbered decision;
“…The plaintiff, the employer … A.Sh. February July March August 2012, he left the workplace to perform his military service, completed his six-month military service in February 2013, asked his employer to return to work again, verbally stated that they could not hire him because there were no vacant staff, the defendant had two years and five months of work at the workplace and worked under the defendant for an indefinite period of staffing, i.e., after completing his military service, he asked to be decided on his return to work, because he did not accept the request for his return to work, he became a victim.
February 31.07.2012, the plaintiff completed his military service in February 2013, asked for his return to work, but the plaintiff requested a refusal of this case, as he did not have the right to file a case for reinstatement. Dec. The defendant’s deputy said that an indefinite employment contract was signed between the plaintiff and … on 01.11.2011, the plaintiff resigned from the defendant’s company to perform active military service on 01.07.2012.
It was decided by the court that it was unlawful for the plaintiff not to return to military service and not to start work.
The decision was appealed by the defendant’s deputy.
Article 31/4 of the Labor Code No. 4857 states that “If employees who leave their jobs due to any military and legal assignment want to get a job within two months of the end of this assignment, the employer must hire them immediately if there are vacancies in their old jobs or similar jobs, or on current terms, preferring other bidders for the first job that will be vacated. If the employer does not fulfill his obligation to conclude an employment contract, even if the required conditions are found, he pays compensation in the amount of three months’ wages to the former employee who has requested to be hired. it is arranged as ”.
According to the contents of the file, it is understood that the plaintiff worked as a technician at the defendant’s workplace between 09.03.2010 and 31.07.2012, and the plaintiff terminated the employment contract for military service by receiving severance pay for Dec reason of military service. The plaintiff’s return to military service is related to the establishment of a new employment contract whether he is hired by the employer or not. For this reason, it is not possible for the plaintiff to request a return to work.
31/4 of the above-mentioned Labor Code No. 4857. its article imposed an obligation on the employer to hire an employee after military service and provided for paying compensation as a criminal sanction if it was not initiated.
Accordingly, according to which the court considered the plaintiff’s request to return to military service under Article 31/4 of the Labor Code No. 4857 as a failure to start work, it was erroneous to decide in writing that the case should be dismissed and required to be overturned …”
at the end of the retrial, the court resisted the previous decision by overturning the grounds and turning the file back to its place.
After it was understood that the decision to resist was appealed during the examination by the General Assembly of the Law and the documents in the file were read, the requirement was discussed:
decision
31/4 of the Labor Code No. 4857 of the employee who was not hired upon application after fulfilling his military service in the case. according to the article, it is about requesting a refund for work.
The plaintiff claimed and sued that the defendant left work to do military service while the defendant was working at work, and that the defendant’s request to start working again at the defendant’s workplace after the end of military service was not accepted by the defendant’s employer on the grounds that it was not staffed, and the defendant requested that his return to his job at the workplace be decided.
The defendant’s deputy stated that the plaintiff resigned from his job on 31.07.2012 to perform his active military service, that he was paid severance pay, 31 of the Labor Code No. 4857. he argued that the case should be dismissed, noting that the applicant’s application is not considered a valid application before he finishes military service, as his work is less than a year, and that the plaintiff’s former job or similar vacant staff does not exist.
After it was stated by the court that the case was a detection case arising from the fact that the return to military service was not hired, although the return to work was voluntarily filed, the work to be done here, as in the case of the return to work, consists of determining the illegality of the failure to start the return to military service, is 31/4 of the Labor Code 4857. accordingly, it was decided that the applicant’s application was valid while the plaintiff was on leave for resettlement, the defendant’s employer did not start the plaintiff’s job despite the fact that the staff was eligible to accept the case, the defendant’s return to military service determined that it was unlawful for the plaintiff not to start work.
Upon the appeal of the decision by the defendant’s attorney, the decision was overturned by the Special Department for the reason specified in the title section above.
The court, while noting that the plaintiff’s return to military service is not started if the extradition is requested, the employer of the termination of the trial process is invalid, so is contrary to law, and that failure to correct a violation in the case of determining the sanction to be applied for the determination of the case, a decision of the court of the determination of the provision is included if the plaintiff’s demand to return to military service to start, if the determination is that the failure of a breach of law, the plaintiff the cause of action would return as do I connect the naming rights law No. 4857, 31/4. 26 of the Civil Procedure Code No. 6100 of the judge, even if it is accepted that the request has been exceeded for a moment, it is the duty of the judge to determine that the defendant employer has acted contrary to this article of the law, which is based on the article of the Civil Procedure Code No. 6100 of the judge. according to the article, it could decide less than the result of the request, in this context, the case was considered and concluded as a request for the determination of illegality, the request was not exceeded on the grounds that it was resisted in the previous decision.
The decision to resist was appealed by the defendant’s deputy.
The resistance path from the front of the law with the General Board of the conflict are tangible in the event that the severance paid to him separated from active duty military service and work for the plaintiff’s return to work of employees recruited from the military service was not prompt open with the claim in the case at hand because the defendant that the plaintiff is not having the determination to begin with, the employer cannot be regarded as against the law, and here the outcome of the case according to Law No. 4857, 31/4. it is collected at the point of whether it should be rejected within the scope of the article.
An examination of the work of the law during the General Assembly meeting before proceeding to the merits of the decision by the court to be exact, considering where private dairec is broken, and here the decision of the court whether it is possible to set the result to be reached, according to the preliminary issue of whether the appellate review as directed by the General Assembly made laws principles discussed and evaluated.
Despite the fact that the case was opened by the General Assembly of the Law with a request to return to work, in fact, the request was filed under Article 31 of the Labor Code No. 4857. there is a claim based on the article 18 of the same Law, in which the case and the claim are based on the same Law. it was unanimously accepted that the termination provided for in the articles is invalid and cannot be considered a return to work, therefore the decision is not final, there are no preliminary problems.
First of all, it is necessary to briefly dwell on the legal benefit, the detection case, the principle of commitment to the claim and the employer’s obligation to conclude an employment contract.
I.Legal Benefit and Determination Case:
In civil procedural law, the legal benefit is that the plaintiff has an interest in opening this case (or seeking legal protection from the court) in order for a lawsuit to be filed with a request for legal protection from the court.
The plaintiff should have a benefit that is justified (protected) by the rules of law in filing a lawsuit, he should need a court decision to obtain his right, and the plaintiff should not bother the court unnecessarily (Arslan, R.; Quoted by: Khanagasi, E., Vested Interest in the case, Ankara 2009, preface VII).
24.06.1992 Days of the General Meeting of the Law and 1992/1-347 E.- 1992/396 K. and 30.05.2001 days, and 2001/14-443 E.- 2001/458 K. in their numbered decisions, it was also called the need for legal protection (patronage) (Rechts-schutzbedürfnis). There should be a benefit worthy of patronage in requesting legal patronage from the courts.
On the other hand, this legal benefit must be “legal and legitimate”, “direct and personal”, “born and current” (Hanağası, E., a.g….135).
During the period when the Law on Civil Procedure Mülga 1086 was in force, teaching and judicial decisions recognized the need to find legal benefit when filing a lawsuit as a “condition for litigation”. This requirement is “one of the general conditions of litigation on the subject of litigation” and is considered to be among the “positive conditions of litigation” because its existence is necessary in order to conduct an examination of the merits of the case and Decide on the merits.
As a matter of fact, the same opinion was expressed by the General Assembly of the Law on 24.11.1982 days and 1982/7-1874 E.-914 K.; 05.06.1996 days and 1996/18-337 E.-542 K.; 10.11.1999 days and 1999/1-937 E.-946 K. and 25.05.2011 days, and 2011/11-186 E. 2011/352 K., 01.02.2012 day, 2011/10-642 E.-38 K. it is also adopted in their numbered decisions.
in the Code of Civil Procedure No. 6100, which entered into force on 01.10.2011, this application of teaching and judicial decisions was adopted in kind, and the plaintiff’s legal interest in filing a lawsuit was covered by Article 114 entitled “Lawsuit Terms”. in the subparagraph (h) of the first paragraph of the article, it is clearly considered as one of the conditions of the case. Dec.
It is far from any hesitation that the observance of the principle of legal benefit as a condition of litigation in a case will benefit the conduct of a trial in accordance with the purpose of the trial and the principle of procedural economics.
Proceeding from this principle, as a condition of litigation, the existence of a legal interest must be observed spontaneously and at all stages of the trial, as a rule, in accordance with the date of filing the case, within the framework of evidence, events or facts submitted to the case file by the parties by the court. 6 of the European Convention on Human Rights (Convention on the Protection of Human Rights and Fundamental Freedoms), which is part of our domestic law. article 36 of the Constitution of 1982. it will be possible to ensure that the “freedom to seek rights” regulated in the article is used in accordance with the rule of Decency; this will create a guarantee against abuse of the right to sue by filing unfair lawsuits.
The legal benefit in filing a lawsuit must be a legitimate benefit accepted by the legal order, this benefit must be related to the right holder who filed a lawsuit and must still be present at the time of filing a lawsuit. In addition, the case to be opened must be qualified to eliminate the danger that will arise. It can be said that there is a legal benefit if a court decision is necessary at that moment to achieve a person’s right. If there is no need for a court decision, there can be no mention of legal benefit (Pekcanitez, H., Atalay, O., Özekes, M.; Civil Procedural Law, Ankara 2011, p.297).
In resolving the dispute, it is also necessary to examine what the reflection of the concept of legal benefit in the determination case will be.
According to the legal protection they request from the court, the cases are divided into eda cases, detection cases and civil cases.
In Eda cases, it is requested to do something, give something or not do something, while in civil cases it is also requested to change, remove an existing legal situation or create a new legal situation. A new legal situation is created with the adoption of a civil (innovative) case, and the legal result is usually born by a judicial decision.
In the detection case, only the determination provision can be made. The existence or absence of a legal relationship is definitely determined by the decision made in the determination case, in other words, it is concluded that there is a relationship in which the defendant denies its existence or there is a legal relationship in which he denies its absence.
In order for a determination case to be admissible, the plaintiff’s interest (legal interest) must be found in the immediate determination by the court of whether the legal relationship that constitutes the subject of this case exists.
In the determination case; Unlike the eda case and the civil case, it is not assumed that the plaintiff has such an interest. In the detection case, the plaintiff must prove that the damage caused by the dangerous or hesitant situation in question for him can only be eliminated by the detection case. Because the detection case can be opened without denial or violation of a legal situation or right yet, that is, without causing any harm, it has emerged as an exception to the need for the interest to be born and up-to-date.
Here, in order for the plaintiff to have an interest (legal interest) in the immediate determination of the legal relationship, the plaintiff must first have a current (current) and serious threat to the plaintiff’s right or legal situation. This threat is most often manifested by the defendant’s behavior. The fact that this threat may pose a danger to the plaintiff depends on the fact that the plaintiff’s legal situation is in doubt due to this threat and that this issue is of a nature that may harm the plaintiff (Hanağası, a.g.e., s.133 et seq.; the same principles were adopted by the General Assembly of the Law on 01.02.2012 day and 2011/10-642 E.- 2012/38K. in their numbered decisions, it is also adopted.).
In other words, the existence of a legal benefit in the immediate detection of a legal relationship depends on the coexistence of the following three conditions:
1-) A right or legal status of the plaintiff must have been threatened with a current danger;
2-) Due to this threat, the plaintiff’s legal status should be in doubt and this issue should be of a nature that can harm the plaintiff;
3-) Only the determination provision that has the effect of a final provision and does not authorize forced execution should be conducive to eliminating this danger.
As a matter of fact, Article 106 of HMK No. 6100, which was in force at the time of the case. in the article;
“(1) Through the detection case, the court is requested to determine the existence or absence of a right or legal relationship, or whether a document is a fake.
(2) The applicant who has filed a detection case must have a current benefit that is legally worth protecting in opening this case, except for exceptional cases specified in the law.
(3) Material cases cannot constitute the subject of the determination case on their own.” the detection case has been organized as follows.
According to the provision of this article, cases aimed at determining the existence or absence of a right or legal relationship, or whether a document is fake, are called detection cases.
The plaintiff who has filed a determination case must clearly state the fact that there is a current benefit worth protecting legally in filing a lawsuit, as opposed to the cases built with the eda case, and prove its legal benefit.
Material cases cannot be made the subject of a determination case alone; however, they can be made the subject of determination in order to determine the existence or absence of a right or a legal relationship.
II. The principle of commitment to demand:
One of the principles that dominate civil law proceedings is the principle of adherence to demand. This principle is clearly stated in Article 26 of the HMK No. 6100. Accordingly, the judge is bound by the demands of the parties. He cannot decide on more than a request or anything other than a request. Depending on the situation, the claim may decide for less than its result. The provisions of the law on the fact that the judge is not bound by the request of the parties are reserved.
In some cases, the judge is not bound by the request of the parties. These situations are clearly spelled out in the law. For example, 170/3 of the Turkish Civil Code. in accordance with the article, the judge may decide on a divorce or separation, even if the reason for the divorce has been proven in the case filed with a divorce request.
26 of HMK No. 6100. according to the principle of “commitment to demand”, which is stipulated in the article, it is not possible for the judge to decide whether the parties are bound by their demands or not. Accordingly, the judge must decide in such a way and scope as to meet the demands of the parties. It is determined by looking at the parties’ petitions and usually the lawsuit petition whether the parties have requested or not and whether the judge can make a decision about what.
The principle of adherence to the claim also imposes on the judge the obligation of not being able to decide on more than the claim. This obligation imposed on the judge by the principle of commitment to the claim is also related to and in accordance with the “principle of saving” expressed in Article 24 of the HMK No. 6100 and the “principle of enforcement by the parties” contained in Article 25.
On the other hand, the principle of “commitment to demand” requires that the judge cannot decide anything other than what is requested. The inability to decide on something different from what is requested is determined by comparing the result of the request with the result of the provision made.
III. The employer’s obligation to conclude an employment contract:
In our legal system, freedom of contract applies, and accordingly, people have the right to enter into a contract and choose the person with whom they will enter into a contract. However, in labor law, for social reasons, in some cases, the employer has been obliged to enter into an employment contract, and thus certain restrictions have been imposed on the employer’s freedom to enter into a contract.
Within this scope, articles 30 and 31 of the Labor Code No. 4857 are applied. in its articles, the conditions that impose an obligation on the employer to conclude an employment contract are also regulated.
Article 30 of the Law. pursuant to the first paragraph of the article, fifty or more workers to employers to run three percent of private sector workplaces disabled, four per cent and two per cent in the public establishments with disabilities, ex-convict workers or military law No. 1076 1111 16/6/1927 21/6/1927 dated or dated and dated 12/4/1991 Backup officers and reserve officers covered by the Law No. 3713 doing military service, while the Anti-Terrorism Law, Article 21. they are obliged to employ those who have been injured in a way that they are not considered disabled as a result of the cause and effect of the terrorist events listed in the article in accordance with their professional, physical and spiritual status in jobs appropriate to their professional, physical and spiritual status.
Article 30 of the Law. according to the fifth paragraph of article from a former Shield workers from disability disability after work again forced to leave if they wish to take them on in their workplaces, the employer immediately if you have them or similar jobs vacancy in Old work, or empty if there are no other bidders by choosing to first, you are required to take a job with the current conditions. The employer who does not comply with this obligation pays compensation in the amount of six months’ wages to his former employee who has requested to be hired.
In addition to this regulation, if employers violate the obligation to employ disabled and former convicted workers in violation of the aforementioned article, they may be subject to Article 101 of the Law. according to the article, they will be punished with an administrative fine.
As such, Labor Code No. 4857 No. 31. in its article, it again imposed an obligation on the employer to enter into an employment contract. 31. according to the article;
“The employment contract of an employee who leaves his job due to maneuvering or being armed for any reason other than active military service, or a work assignment arising from any law, is considered terminated by the employer after two months starting from the day he leaves his job.
In order for the employee to benefit from this right, he must have worked in this job for at least one year. For each additional year, in addition to working more than one year, two days are added. So far, the entire period of this period cannot exceed ninety days.
In order for the employment contract to be considered terminated, the employee’s wages will not be processed within the period that should be expected. However, the provisions of special laws in this regard are reserved. Even if it has been notified to the other party that the employment contract has been terminated by the employer or employee for another reason arising from the Law during this period, the period specified by the Law for termination begins to function after the expiration of this period. However, if the employment contract has been concluded for a certain period of time and the contract ends spontaneously within the above-mentioned period, the provisions of this article will not apply.
Any military and legal homework, therefore, that workers left the job within two months from the end of the assignment if they wish to get a job similar jobs vacancy in workplace or former employer immediately if you have them or first empty if the other bidders, by choosing to take a job with the current conditions you are required to. If the employer does not fulfill his obligation to conclude an employment contract, even if the conditions are met, he pays compensation in the amount of three months’ wages to the former employee who has requested to be hired.”
In the law, “any military assignment”than on, since it is not only for active duty military service workers who are forced to leave work because of any military assignment as it is possible for you to benefit from the provision of Apart from these, also fall under the scope of leavers from work due to a legal assignment provision.
In order for the employee to take advantage of the opportunity provided for in Article 31 / last of the Law, it is necessary to apply to the employer within two months of the expiration of the said military or legal assignment. The employer is obliged to take the employee whose assignment has expired to the first job that will be vacated immediately, if there is a vacancy in similar jobs, or not, on current terms.
18 vd of the Labor Code of non-employed workers returning from military service. he cannot file a case for return to work based on his provisions. He can’t take advantage of job security. Because the employment contract has been terminated due to military service, the employment contract is not suspended during active military service, and in this case, there can be no mention of the termination of the employment contract by the employer, who does not have a return to military service (Surek, P.: Labor Law has been Renewed 11. Edition, Istanbul 2015, p.335).
A compensation sanction, not an administrative fine, is provided for the employer who does not fulfill his obligation to conclude an employment contract with former employees who have completed a military or legal assignment, but does not hire them even if they have conditions. 31 of the Law, indeed. if the employer does not fulfill his obligation to conclude an employment contract, even if there are the conditions required in accordance with the fourth paragraph of his article, he pays compensation in the amount of three months’ wages to the former employee who requests to be hired.
IV. Evaluation of the concrete event:
The plaintiff claimed that he went to the military service while working at the defendant’s workplace, and that he did not return to military service, and the defendant asked that his return to his job at the workplace be decided.
It was decided by the court that it was unlawful for the plaintiff to return to military service and not to be hired by the defendant’s employer.
However, the plaintiff’s work at the defendant company’s workplace, which began on 09.03.2010, ended on 31.07.2012 on the letter of referral to the union on 31.07.2012 on the petition that he wants to quit by resigning as of the end of the work date of 31.07.2012.
Pay July 2012, severance pay was paid by the defendant employer to the plaintiff by accrual of the payroll.
In this way, after the end of the employment contract between the parties, the plaintiff who completed active duty military service workers he was discharged on 01.02.2013; dated 21.01.2013 23.01.2013 in history, the employer as of the date 31.01.2013 in his petition that he entered into the records, military service to complete the task because it is wanted to be made about the need to return to. The defendant was not hired by the employer by writing an “ineligible” comment on the plaintiff’s petition.
Thus, 31/4 of the Labor Code No. 4857. although the article imposed an obligation on the employer to hire the employee who left the job due to a military or legal assignment again if he applied within the period stipulated by the Law, it is not possible for the plaintiff to file a lawsuit against the employee if this obligation is not fulfilled, and since the sanction of the employer’s non-compliance with the obligation imposed by law is determined as compensation, the plaintiff cannot file a lawsuit with a request for reinstatement.
Moreover, the court’s decision No. 6100 of HMK 26. it is also not possible for the defendant employer to decide that it is unlawful for the plaintiff not to start the plaintiff employee for his return to military service by accepting the case filed with the return to work request as a detection case in violation of the “commitment to demand” principle stipulated in the article.
However, since the claimant employer’s request for the plaintiff to be hired again was not accepted by the defendant employer, the plaintiff’s employee was required to comply with Article 31/4 of the Labor Code No. 4857. since he must file an eda lawsuit containing a claim for ”compensation in the amount of a quarterly fee” in accordance with the article, it cannot be mentioned that he also has a legal interest in making a determination decision.
As such, while it is necessary to comply with the decision to disrupt the Private Office adopted by the General Assembly of the Law, it was not right to resist the previous decision.
Therefore, the decision to resist must be overturned.
CONCLUSION: It was unanimously decided on 07.03.2018 that the decision of the defendant’s deputy to resist the acceptance of appeals would be OVERTURNED for the reasons shown in the decision to overturn the Special Chamber, and if requested, the advance fee of the appeal would be returned to the depositor, the decision would be closed on the way of correction.
