- Law Office
Base Number: 2017/13142
Decision Number: 2020/69
“Justice Text”
COURT: LABOR COURT
The decision made as a result of the lawsuit between the parties was requested to be examined on appeal, and it was understood that the appeal requests were in time. After listening to the report prepared by the Investigation Judge for the case file, the file was examined, the need was discussed and considered:
JUDICIARY DECISION
A) Summary of Plaintiff’s Request:
The plaintiff’s attorney stated that his client works as a cleaning staff and retired, that his salary is paid over the minimum wage, that the plaintiff works at the hospital 6 days a week between 07.00 -16:00 / 18:00 and is entitled to overtime pay, that he also works on holidays, annual leaves never used it, that more than one consecutive fixed-term employment contract with the plaintiff turned into an indefinite-term contract from the beginning, and that the plaintiff is entitled to severance pay; Without prejudice to the rights regarding the surplus, 1,000,00 TL severance pay, the highest bank interest applied to the deposit as of 29/01/2015, the date of dismissal, 100.00 TL annual paid leave, legal interest, and 100.00 TL overtime pay, the highest bank interest with the highest bank interest, 100.00 TL national holiday and general holiday fee, and the collection of attorney’s fees for litigation expenses from the defendants.
B) Summary of Respondent’s Response:
Attorney of the defendant Turkish Public Hospitals Institution; that an indefinite debt lawsuit will not be filed and the lawsuit should be rejected due to the lack of legal benefit, that the lawsuit has been filed, that the wage receivables due 5 years before the date have expired, that the plaintiff has worked as a cleaning worker in different companies from 01/01/2005 to 29/01/2015. He stated that he worked at the Training and Research Hospital, that his employment contract was terminated with a retirement petition on 29/01/2015, that the administration has no responsibility since the expenses related to notice and severance pay are paid to the company within the contract and general expenses, they are not in the position of the main employer and the responsibility belongs to the contractors. arguing that the case was rejected in terms of hostility and merits, and demanded a decision.
Defendant … İnş. LLC. his deputy; Within the framework of the law numbered 6552 and the relevant regulation, companies that are subcontractors do not have any responsibility for the claims of the plaintiff, they objected to hostility, the plaintiff left the job voluntarily without any justified reason, and there is no severance pay, there is no document submitted to the company about his retirement, the plaintiff only A petition was filed stating that he wanted to quit his job because the retirement day was over, the liability of the company was limited to the time he worked in the company of the plaintiff, the claim that he worked 6 days a week was not true, the weekly working time did not exceed 45 hours, all the rights of the plaintiff were paid in full, that he was not working continuously on national holidays and public holidays. The lawsuit was filed against hostilities, arguing that there was no question of employment, that the compensation was paid, that the plaintiff worked in the company for a period of one year, that he used his right to annual leave, that his receivables were time-barred. t and requested its refusal on the merits.
C) Summary of Local Court Decision:
The court decided to partially accept the case.
D) Appeal:
The defendants separately appealed against the decision.
E) Reason:
1-According to the articles in the file, the collected evidence and the legally compelling reasons on which the decision is based, all the objections of the defendant company and the attorney of the defendant institution, which are outside the scope of the paragraph below, are not valid.
2- The main dispute between the parties is about the determination of the legal relationship between the changing sub-employers and its effects on the worker’s labor rights.
In Article 2 of the Labor Law No. 4857, employers are defined as real or legal persons or institutions and organizations that employ workers based on an employment contract. In that case, in order to talk about the principal employer-sub-employer relationship, first of all, there must be an employer with a workplace where the goods or services are produced, and a second employer taking a job at the same workplace so that the main employer-sub-employer relationship can be mentioned. It is not necessary for the subcontractor to have a workplace at the beginning. The subcontractor may have gained the title of employer for the first time due to the job it received from the main employer and the workplace where this job was performed.
The problem of whether it is possible to talk about an independent workplace for the subcontractor should be resolved first, since an auxiliary work for the production of goods or services carried out in the workplace of the main employer is left to the subcontractor. Because, in order to determine whether the change of the main employer or subcontractor is in the nature of a workplace transfer, the concept of workplace should be clarified at this point.
When we look at the problem in terms of the Trade Unions Law No. 2821, the main problem is
Even if it is necessary to say that the line of business to which the work is subject is also valid for auxiliary work, in the face of the explicit provision of Article 3 of the Law No. 4857, cases where the work is left to the subcontractor should be distinguished from this. In fact, although the article 2/III of the Law No. 4857 includes the main rule that overlaps with the Trade Unions Law as “The workplace is a whole within the scope of the work organization formed with the places connected to the workplace, attachments and tools”, the main employer-sub-employer relationship is regulated in the next paragraphs, in a sense. A separate situation is envisaged with the subcontractor leaving the auxiliary work to the subcontractor. Then, the problem was clearly resolved by including the rule in Article 3 of the same law that “The subcontractor is obliged to make a notification for his own workplace, which he created for the production of goods or services in this capacity, in accordance with the provisions of the first paragraph” and the subcontractor workplace is independent of the workplace belonging to the main employer. has been revealed. The specified solution form also corresponds to the nature of the subcontracting institution. The Supreme Court of Appeals Civil General Assembly concluded that the workplace of the subcontractor was independent from the workplace of the main employer even before the Law No. 4857 came into force (Court of Appeals HGK. 6.6.2001 day 2001/ 9-711 E, 2001/820 K).
The transfer of all or part of the workplace to another person based on a legal transaction can be defined as a workplace transfer. In Article 6 of the Law No. 4857, it is regulated that the existing employment contracts will be transferred to the transferee in case the whole or a part of the workplace is transferred to someone else based on a legal transaction. According to this explanation, the transfer of the workplace, in which the subcontractor carries out its activities within the scope of the work received from the main employer, to another employer is a workplace transfer within the scope of Article 6 of the Labor Law No. 4857. The well-established jurisprudence of our department is in this direction (9. HD. 18.9.2008 day 2006/26306 E, 2008/23980 K.).
It is also possible to make a contract between the expired subcontractor and the subcontractor who has just received the new tender, which explicitly stipulates the transfer of the workplace. In cases where the workers who will continue to work at the workplace with the new subcontractor are determined despite the change of the subcontractor, it is undisputed that the employment contracts are passed by the transferee employer for the aforementioned workers. However, it is necessary to accept that the employment contracts of the workers who are not listed among the workers who will work in the new sub-employer and who are not notified by the expired sub-employer to be employed in another workplace are terminated by the transferring sub-employer.
There is no legal relationship between sub-employers in the example of the sub-employer leaving the workplace at the end of the working period concluded by the sub-employer with the main employer or before the end of the period, by showing all his workers another workplace based on the reason for the termination of the relationship, and then giving the job to another sub-employer by the main employer. Since the legal relationship is between the sub-employers and the main employer, the stated situation cannot be considered as a workplace transfer between the sub-employers.
The most common change in subcontractors occurs when the expired subcontractor leaves the workplace and the workers continue to work for the new subcontractor. It is important to determine whether this action is in the nature of a workplace transfer and to determine its legal consequences. What should happen in the change of subcontractors is that the expired subcontractor takes its workers with him to other workplaces when he leaves the workplace or the employment contracts are terminated. On the contrary, if the subcontractor workers continue to work with the new subcontractor in the same way despite leaving the workplace of the subcontractor, a workplace transfer must be accepted between the subcontractors within the meaning of Article 6 of the Labor Law. In this case, it is stipulated in the same article that the new subcontractor takes over the ongoing service contracts.
If we do not accept the change of sub-employers without being bound by any legal process between them as a workplace transfer, it may cause loss of rights since each sub-employer will be responsible for labor rights for their own period and the responsibility of the main employer cannot exceed the responsibility of the sub-employer as per the law. For example, sub-employers who periodically employ workers in the workplace for 11 months and 29 days will never be obliged to pay severance pay and leave wages, although the main employer’s responsibility for these labor rights will come to the fore. However, it cannot be considered that the responsibility of the main employer exceeds the responsibility of the subcontractor or employers.
The provision of Article 14/2 of the Law No. 1475 can be considered as a broader regulation that includes the transfer of the workplace specified in Article 6 of the Law No. 4857. In fact, after the transfer or transfer of workplaces is mentioned in the article, it is necessary to say “…or transfer from one employer to another employer or transfer to another place by any means…”
