Summary:
as a rule, it is not correct and possible to determine receivables arising from labor law in the form of a specific or indefinite receivable case from the beginning, as a rule. For this reason, the opening of an indefinite receivable case in labor law also depends on the existence of the necessary conditions for the opening of this case. If there are such conditions, an indefinite receivable lawsuit may also be filed in labor law, or it may not be filed. Likewise, the same applies to the partial case.
In the light of the explanations made above, considering the characteristics of the concrete event that is the subject of the case at hand, in the evaluation made in terms of the uncertain receivables case;
Article 107 of the Law No. 6100 of the case. there is no doubt that it was filed as an indefinite receivable case in accordance with its article. In terms of overwork and general vacation payables, although the plaintiff can determine how many hours of overwork he does per week and on what general holidays he works, he is not able to know at what rate the judge will discount the discretion from the calculated amount. For this reason, overwork and general vacation receivables may be subject to an indefinite receivable lawsuit.
T.C.
Supreme
- law office
Base No:2014/28532
Decision No:2016/1243
K. Date:20.1.2016
Y A R G I T A Y I L A M I
TRIBUNAL : Employment Tribunal
LAWSUIT: Plaintiff-counter-defendant has requested that the severance pay, overtime, national holiday and general holiday and week holiday pay be paid, and the defendant-counter-plaintiff has requested that the collection of the notice compensation be decided.
The court decided to dismiss the case against the acceptance of the original case.
Although the parties were appealed by their lawyers during the sentencing period, after hearing the report prepared by the Examining Judge for the case file, the file was examined, discussed and considered as necessary:
Y A R G I T A Y K A R A R I
The deputy of the plaintiff against the defendant is the subject of Article 107 of the Civil Procedure Code No. 6100 of the case. uncertain identification and receivables in accordance with the collection that was the case, the plaintiff’s 10.05.2007-30.04.2011 as a driver working with dates is seamless between 900,00 monthly fee, to be admitted by the plaintiff of an employment contract salary of the employee is constantly late, be run outside of the job description that requested, and other reasons that justified with was dissolved, six days a week, the only Day holiday by Sunday 08:30-19:30 between the hours of working are also at least two times per week, night out, carrying the return of the ceramic by night, working in the period didn’t use any annual leave, Stating that he worked on other national holidays and general holidays except October 29, and that he had signed a Hebrew contract with the promise that all his rights would be paid, he requested that the defendant collect severance pay and part of his labor receivables.
30.04.2011 the defendant on the plaintiff against the defendant to the plaintiff’s attorney resigned from office and left, to justify an employment contract with the plaintiff has scrapped due to reasons not find a new job, and they received the salaries of employees other in the days of the plaintiff and the plaintiff’s out-of-hours if it comes to sending out of the city, the workplace is closed on public holidays national holidays of the defendant, the defendant company at 09:00-18:00 Saturday between days and five hours of overtime workers working within the scope of, stating that the plaintiff left the job, the defendant left the employer in a difficult situation, left the job without complying with the notice period, the case was decided to be dismissed, and the plaintiff requested that the notice compensation be collected from the defendant as a counterclaim.
Based on the evidence collected and the expert report, the court decided to dismiss the case against the partial acceptance of the case.
The decision was appealed by the parties’ deputies.
1-According to the evidence collected from the articles in the file and the legal reasons on which the decision is based, it was necessary to decide on the rejection of all the appeals of the defendant and all the appeals of the plaintiff outside the scope of the following paragraphs.
2-The dispute between the parties, which must first be resolved, is collected at the point of dec the case meets the necessary conditions for it to be opened in the form of an indefinite receivable case.
Article 107 of the Law No. 6100, which entered into force on 01.10.2011. according to its article, the application will be considered as a new type of case that is not included in the Code of Civil Procedure No. 1086, and the detection case has been accepted.
Article 107 of the Law No. 6100. according to the article,
“(1) In cases where it is not expected or impossible for him to be able to determine the exact amount or value of the receivable on the date of the opening of the case, the creditor may file an indefinite receivable claim by specifying the legal relationship and a minimum amount or value.
(2) As soon as it is possible to determine the exact and exact amount or value of the receivable as a result of the information provided by the counterparty or the investigation, the plaintiff may increase the claim specified at the beginning of the case without being subject to a ban on expanding the claim.
(3) In addition, in cases where a partial eda lawsuit can be filed, a detection lawsuit can also be filed, and in this case the legal benefit is considered to exist.”
This article, which is not included in the government bill, was created and eventually dec deciphered by the Justice Commission of the Grand National Assembly of Turkey on the grounds that the person who is in the process of seeking rights related to a receivable whose amount or value cannot be fully determined from the outset should be protected as widely as possible within the framework of freedom of seeking rights by eliminating the difficulties faced by the legal system.
In order for the case to be filed as an indefinite receivable case, the amount or value of the receivable subject to dispute as of the date of filing the case should not be determined exactly and definitively by the plaintiff. The inability to determine it should be based on the fact that, despite the fact that the plaintiff has shown the necessary attention and care, the determination of the amount or value is not really expected of him, or is objectively impossible.
On the grounds of the article, “In order for the creditor to file such a lawsuit, it should not be possible or objectively impossible for him to actually determine the exact and precise amount or value for which he will file a lawsuit. If the amount of the lawsuit to be filed is known or can be determined, such a lawsuit cannot be filed. Because, as is sought in every case, legal benefit will be sought here, in such a case, it cannot be said that there is a legal benefit. In particular, when the new provisions related to the partial case are also taken into account and evaluated together, it is unacceptable to resort to this method if it is possible to determine it from the beginning.”in the event that the receivables are of a certain or determinable nature, it has been pointed out that it is not possible to take advantage of the opportunities provided by this case by filing an indefinite receivable lawsuit.
It is not possible to make an exact classification of which cases the receivable is uncertain, which cases are specific or determinable, and it is necessary to draw a conclusion by taking into account the characteristics of the concrete event in terms of the receivable for each case.
107/2 of Law No. 6100. in the article, criteria of a guiding nature are included in the solution of the problem. The aforementioned article in the paragraph from the other side, a result of the information or inquiry, allowing it to be precisely determined and full of the amount or value of accounts receivable at the time the plaintiff’s claims without being subject to possible expansion of the ban stated at the beginning of the case that can increase the demand for the provision under article also “the other side of the investigation and inquest by the evidence or the evidence it offers, and provides information on the outcome of the process (such as mining or the result of expert discovery)” describes a state of being able to be determined.
In cases where the plaintiff does not have the necessary information and documents to determine the amount or value of the receivable and it is (really) not possible to reach these documents during the preparation period of the lawsuit, and therefore it will become possible to determine the amount of the receivable by submitting the information and documents in the possession of the counterparty, the receivable should be considered indefinite.
Just because there is a dispute between the parties regarding the amount of receivables, it does not mean that the determination of the result of the claim cannot be expected from dec plaintiff. The main thing is that objectively determining the outcome of the claim cannot be expected from the plaintiff. If only the amount of receivables is considered sufficient to open an indefinite receivable case if there is a dispute between the parties or it is disputed, almost all cases must be accepted as an indefinite receivable case, which dec contrary to the purpose of the law. Because there is already a dispute, a lawsuit is filed and the dispute comes before the court. The main thing is whether the plaintiff has the opportunity to make his request specific. It should be noted here that the determinability of the receivable and its provability should also be evaluated separately. It is objectively possible to determine the claimant’s requested receivables, but if it is not possible to prove the receivable that it can be determined and prove it as required by law (with the evidence in its possession), it cannot be mentioned that an indefinite receivable lawsuit will be filed here. Because the determination of a receivable and its proof are separate things. The plaintiff can very clearly determine what he will receive as the subject of the claim, but he may not always be in a position to prove it. Acceptance of the contrary can lead to a situation that contradicts both the purpose of the law and the general principles, such as converting a receivable with every difficulty of proof into an indefinite receivable.
It should be accepted that in cases where the determination of the amount of receivables depends on the examination of the evidence to be made at the investigation stage, expert examination or other procedures such as discovery, an indefinite receivable case may also be filed. However, going to an expert review in a case is not enough to open an indefinite receivable case. Although an expert witness is consulted in a case, if the plaintiff can determine the amount of receivables when filing a lawsuit, an indefinite receivable lawsuit cannot be filed.
Categorically, it cannot also be said that a certain type of lawsuit or lawsuits filed by certain people have a specific or vague receivable case from the beginning. An indefinite receivable case should be determined by applying the criteria for this case to a concrete event.
In cases where the judge is granted discretion in determining and determining the amount of receivables (For example, Turkish Code of Obligations Art. 50, 51.56 No. 6098), it should be recognized that it is impossible for the plaintiff to determine the amount or value of the receivable exactly and precisely as a result of the discretion that the judge will use, since the receivables may become specific as a result of the opening date of the case. For example, in the application of labour law, Yargitayca more work, weekends, public holidays and national holidays are not based on written documentation of fee receivables and workplace records, witness accounts if it is based on the time that is taken into account and considering the amount you get after it is accepted that a proper appreciation discount should be made to be appreciated. In this case, since the discount rate to be made from the amount of receivable calculated based on the testimony of witnesses at the discretion of the judge is not specific from the outset, the receivable should be considered uncertain.
together with Law No. 6100, the freedom to seek rights in respect of indefinite receivables has been extended by granting the opportunity to file an indefinite receivable lawsuit within the framework mentioned above; in connection with this, the possibility of filing a partial lawsuit without dec benefit has been limited, but not completely abolished.
From time to time, it seems that the limit in the new regulation on partial litigation with an indefinite receivable claim, adopted in conjunction with Law No. 6100, cannot be fully determined, one is used instead of the other. However, the purpose and nature of these two cases are separate. If the receivable is specific or determinable, an indefinite receivable lawsuit cannot be filed, but if it has conditions, partial litigation is possible.
The law won’t completely remove the possibility of partial limit to file a lawsuit, too protected, certain receivables, vague claims opened, even if the legal conditions and when it is found in the benefits, the part may be brought. Otherwise, only two possibilities can be mentioned in the form of either filing an indefinite claim or filing a specific full claim, which is then 109 of Law No. 6100 on a partial claim. the actual implementation of the provision in the article cannot be in question. Because, in an indefinite receivable case, a lawsuit can be filed by taking advantage of the opportunities provided by an already indefinite receivable case; if the receivable is specific, then only a full eda case can be filed. However, according to the principle that the legislator will not engage in abesle, a partial lawsuit can be filed considering that the regulation on a partial lawsuit has been made with the said article and paying attention to the limitations in the Law.
At this point, it should be clarified that in the event that the case is filed as an indefinite receivable case in the lawsuit petition, even if there are no conditions, the plaintiff should be denied the case due to the absence of legal benefit without giving any time. Because, while it is possible to determine the receivable, the Law did not allow such a case to be opened. In such a situation, the case should be dismissed, an october period of time should not be given, since there is no legal benefit in filing an indefinite receivable claim. Because the demand is obvious here, for this reason, it is 119/1 of Law No. 6100. it is not possible to give time by applying the article; since an indefinite receivable lawsuit has been filed, although it should not actually be filed, the case should be dismissed due to the lack of legal benefit, since the deficiency in this regard cannot be completed by giving time.
The legal benefit here is not a legal benefit that will be completed later. Because the legal benefit that was not available at the time when the case was filed is not a legal benefit that will be completed in a situation where it is also clearly known to the court. The adoption of the contrary, in fact there is a clear demand by the plaintiff that exist to be replaced when given time and providing additional opportunities to enjoy the legal benefits to the plaintiff in terms of the procedures that will mean it is not possible, such a situation would be contrary to the principle of equality between the parties. In addition, if a minimum amount is indicated in the lawsuit filed and it is understood that this is a part of the receivable, but it is not clear whether it is an indefinite receivable case or a partial case with a certain receivable, in this case it is 119/1 of Law No. 6100. the result of the request will not be clearly stated in the manner sought by the clause. If the request, the type of request and the nature of the case are not clearly understood, if the request is vague, the same Law 119/2. according to the article, the plaintiff should be given a definite period of one week and asked to indicate whether his request is an indefinite receivable case or a partial case. After this given period, a path should be followed according to the plaintiff’s explanation of his request. If the claim is disclosed by the plaintiff in the form of an indefinite receivable lawsuit, but in reality it does not carry the conditions of an indefinite receivable lawsuit, then it should be acted on in the above way, the case should be dismissed due to the absence of legal benefit. If the claim bears the conditions of an indefinite receivable claim after the disclosure, according to the results of this case, if the claim bears the conditions of a partial case, the case should be decided by executing the case according to the results of the partial case (our department’s decision No. 2012/30463 based on 2012/30091 decision dated 31.12.2012). Article 110 of the Law No. 6100. in the event of an accumulation of cases (objective case merger) defined in the article as the plaintiff’s filing of more than one independent substantive claim against the same defendant in the same lawsuit petition, since it is accepted that there are as many cases as the number of claims, and 297/2 of the same Law. since a provision must also be made separately for each claim in accordance with the article, in this case, it will be necessary to evaluate separately for each claim whether the claims put forward in the lawsuit petition are indeterminate receivables.
As a result of all these explanations, it should be noted that, as a rule, it is not correct and possible to determine certain or uncertain receivables from the beginning in terms of receivables arising from labor law in the form of a case of receivables, as a rule. For this reason, the opening of an indefinite receivable case in labor law also depends on the existence of the necessary conditions for the opening of this case. If there are such conditions, an indefinite receivable lawsuit may also be filed in labor law, or it may not be filed. Likewise, the same applies to the partial case.
In the light of the explanations made above, considering the characteristics of the concrete event that is the subject of the case at hand, in the evaluation made in terms of the uncertain receivables case;
Article 107 of the Law No. 6100 of the case. there is no doubt that it was filed as an indefinite receivable case in accordance with its article. In terms of overwork and general vacation payables, although the plaintiff can determine how many hours of overwork he does per week and on what general holidays he works, he is not able to know at what rate the judge will discount the discretion from the calculated amount. For this reason, overwork and general vacation receivables may be subject to an indefinite receivable lawsuit.
As for the severance pay subject to dispute, as is clear from the content of the claim, the plaintiff can determine the length of work, the last wage paid, the amount of monthly wages that he claims to receive. Their social benefits, which can be measured with additional money or money, can also be determined on the basis of october monthly fee that will be based on the calculation of compensation. In this case, severance pay is not an indefinite amount. It is understood that the receivables subject to litigation are actually identifiable receivables and cannot be the subject of an indefinite receivable lawsuit, while due to the absence of legal benefit in terms of severance pay, the case must be dismissed from the procedure, it is erroneous to enter a written decision on the merits and required it to be overturned.
3-As explained above, it is understood that overwork and general vacation receivables are receivables that can be subject to an indefinite receivable lawsuit, and the claimant’s deputy filed an indefinite receivable lawsuit and requested; Since the statute of limitations on the opening of the case and the entire receivable has expired in an indefinite receivable lawsuit, Law No. 6100. 107/2. according to the article, increasing the demand is qualified as reclamation and it has not been correct to take into account the statute of limitations against reclamation. Since the amounts requested by the request increase petition will not expire, it is incorrect to reach a conclusion without considering that a provision should be established according to these amounts and required to be overturned.
CONCLUSION: It was decided by a majority vote on 20.01.2016 that the provision would be OVERTURNED for the reason described above, and that the appeal fee received in advance would be returned to the relevant party if requested.
Disputes; labor it would take the case “vague claims” whether or not it has the necessary conditions for the opening of nature; and we cannot vague claims are subject to a partial case; case “vague claims in the form of” opened, although the court concluded that the claims did not occur when opening the ambiguous conditions, the legal requirement for the type of benefit case, is a case in point can be completed subsequently collected.
As is known, into force on 01.10.2011 6100) in Article 107 of the code of Civil Procedure; Law and a new trial that are not included in 1086 Mulga type “vague claims” is placed on the concept of this case and the “fixing cases” that can be opened as it is accepted. According to the article 107 in question, the plaintiff; in cases where it is impossible or impossible to determine the amount or value of the receivable “fully and definitively” as of the date of filing the lawsuit, it may file an indefinite receivable lawsuit by specifying the legal relationship and a minimum amount or value. As soon as the information and/or documents provided by the counterparty or as a result of the investigation become available to determine the exact amount or value of the receivable; The plaintiff will be able to increase the amount of the claim specified in the lawsuit petition without being subject to a ban on expanding the claim. In addition, in accordance with the provision of this article, the plaintiff may also take the path of opening an indefinite receivable case in the form of a determination case instead of substituting it as an eda case. To summarize, if there are conditions for filing an indefinite receivable claim, the plaintiff may file an indefinite receivable claim (eda case) within the meaning of the first paragraph of Article 107, as well as a determination case (art.107/3) or partial litigation (art.109) he will also be able to apply for ways to open it.
Although the bill was not in the government, the Justice Commission of the Grand National Assembly of Turkey by the mentioned law by editing the article; in essence, a pre-determined amount or value of which cannot be exactly it would take a person who may file a lawsuit to obtain, especially in terms of the start date of interest you get and avoid the timeout, it is observed that aimed to protect the rights. In this respect, based on the provision of the law; in order for an indefinite receivable lawsuit to be filed, the amount or value of the receivable subject to dispute as of the date of filing the lawsuit should not be determined “fully and definitively” by the plaintiff. However, it can be said in the light of the narratives in the article that the inability to determine here should depend on objective conditions. In other words, even if the plaintiff has sufficient legal knowledge and the ability to make calculations, the exact and precise determination of the amount or value of the loan that he will receive without a trial should not be expected from him objectively. It is seen that the provision of the above-mentioned paragraph of Article 107 in this regard is important both for a clearer understanding of the criterion of objectivity and for determining the path that the plaintiff can follow from the moment the “uncertainty” condition disappears.
As for dec issue of how the conditions of an indefinite receivable case, and by the way, the element of objectivity, should be understood in cases related to employee receivables;
As it is known, the rights and obligations of the worker and the employer between employment and social security law that document editing, submission to the relevant authorities in accordance with the legislation of them, in essence, is an obligation of the employer (Law No. 4857, MD. 8, 32, 37, 67, 75.). At this point, can it be said that the conditions for filing an indefinite receivable claim and the rules of proof law are not related to each other at all? Contrary to the majority opinion of the circle; in our opinion, in the face of the explicit provision of the second paragraph with the phrase “in full and in full” in the first paragraph of Article 107, it seems unlikely that we will be able to answer this question in the affirmative. Of course, it is not true to say that the claimant’s lack of information and equipment, or the fact that it requires complex processing; in any case that requires receiving an account report, the receivable is uncertain. However, it should be recognized that in the case petition it is claimed that the receivable cannot be determined “fully and definitively” due to the inability to access the information and documents in the hands of the counterparty, and in cases where this is embodied, the way of filing an indefinite receivable lawsuit can be resorted to.
In the opinion of the majority of the apartment; on the one hand, categorically a part of the case filed by other persons or certain types of claims cannot be over emphasizes that from the start of the while attempting not to mention specific or vague; on the other hand, annual leave severance pay you would get with receivables as “identifiable” bet, vague claims be subject to adoption in our opinion, represents a contradiction. Indeed, although there was any legal basis, determinable receivable being said, with vague claims cannot ulusmak to the conclusion that under the law a “full and final” as the phrase in front of a correct solution is not the style of. Therefore, if the plaintiff can concretely state that he cannot determine the exact and precise amount or value of the receivable for what reasons in his petition; The type of receivable should not have any importance in terms of the case being filed as an indefinite receivable case.
If it is necessary to embody the topic more concretely;
In a petition that will take annual leave with severance pay; the worker in the workplace for a period of ten years, the monthly fee of $ 1000 has worked with vague claims of a vacation last year and allegedly opened not in use; however, it is unclear why this is the case when it is supposed to be the reason not to reveal; to be accepted as vague claims of such a case in our opinion it does not seem likely. However, the plaintiff; that some periods of his nearly ten-year work were carried out without insurance; a part of the Social Insurance Institution and the defendant’s work that has been reported as missing from various businesses, the fees for the payment of a portion of the annual pieces of leaves, scattered and incomplete that were disbursed; path workplace, whether there is no document on account of food and clothing assistance; distributed hints on what they are going to get premiums and bonuses, as well as records, and the example of the book annual leave could not be obtained, suggesting that the court, in such a case it is possible to conclude that as ambiguous claims?
According to the arguments put forward in the majority opinion of the department; even in such a case, it does not seem possible to open the case as an indefinite receivable case. Because, according to the aforementioned opinion, since the provability of the case is a completely different matter, even in this case, it is necessary to accept that there are no conditions for filing an indefinite claim. However, the way Article 107 is regulated and the very clear statement of the provision on the subject do not seem to be conducive to such an interpretation. In our opinion, it is inappropriate to adopt the stated solution style with the idea that the legislator’s opinion is in the same direction. Proceeding from the justification of the law or the assumed purpose of the legislator, it is unacceptable to go to an interpretation that clearly contradicts the text of the law.
In addition, a relationship that will receive severance pay annual leave with wages of uncertain receivables in the case of a defendant with the petition by the employer to answer, as vague claims in the opening of the case; uninsured workers really have to be run as a term of stays; fees can vary each month; for a long time can not be paid a fixed fee; travel and offers with respect to food aid to the documents in the appendix; therefore, the plaintiff claims that the court defended in their own way of determining exactly when and desired; can it be ruled by the local court that the case cannot be put on an indefinite receivable case in this case? In our opinion, in such a situation, “the approximate amount of the receivable can be determined” by betting or by mentioning the difference in the law of proof, the rejection of the case on the grounds of lack of legal benefit is not correct and the existence of uncertain receivable conditions should be accepted.
On the other hand, in Article 114 of the Law No. 6100, the presence of the plaintiff’s legal interest in filing a lawsuit was adopted as a condition of litigation; in the determination cases filed regarding uncertain receivables, it was assumed that the plaintiff’s legal interest was also found (Art.107/3). In our opinion; when an indefinite receivable lawsuit is filed, if it is disputed whether the receivable is certain or not, in terms of clarifying the issue and determining whether there is a legal benefit; operation of the second and third sentences of the second paragraph of Article 115 and granting the plaintiff a certain period of time; it will be accurate both in terms of the procedural economy and in terms of preventing the victimization of people.
For the reasons described above; For the reasons and merits, the opinion of the Department on corruption No. (2) has not been participated in. 20.01.2016
