T.C. SUPREME COURT 22. Law Department Article No:2018/6283
Decision No:2018/10735
Date of Decision: 04.05.2018
EMPLOYEE RECEIVABLES LAWSUIT – THE SUBJECT OF THE LAWSUIT IS COMPENSATION AND
TECHNICAL AND EXPERTISE OF CALCULATION OF RECEIVABLES
– AN ADVANCE FOR THE SUBSTITUTION OF EVIDENCE – THE CASE DOES NOT REQUIRE
SINCE IT CANNOT BE PROVEN, THE INACCURACY OF BET REJECTION –
VIOLATION OF THE PROVISION
ABSTRACT: In a concrete case, the expert fee requested to be stored by the court is assigned to the case subject to dispute
since it is not directly related to the proof of the relevant claim, the period given is not duly and certain.
Moreover, it is possible to solve it with the general and legal knowledge required by the profession of a judge
an expert on issues cannot be listened to. The calculation of compensation and receivables subject to litigation is also technical and
it does not require expertise. All file coverage, claims for receivables subject to litigation, plaintiff’s defendant
when the statements of plaintiff witnesses heard with the company’s past work are evaluated together, the case
according to the understanding that the claims of a part of the receivables in question have also been proven, the case
since it could not be proven, the decision to reject the bet was wrong and required a reversal.
(1475 P. K. m. 14) (4857 p. K. m. 17, 41, 46, 47, 57) (6100 P. K. m. 324) (1086 P. K. m. 427)
Lawsuit: The Supreme Court of Cassation deconstructs the decision made as a result of the lawsuit between the parties in the interests of the law
Requested by the Prosecutor General’s Office, the Examining Judge for the case file is M. By Hacioglu
after listening to the edited report, the file was reviewed, discussed and considered as necessary:
Verdict: Summary of the Plaintiff’s Request:
The acting plaintiff is the employer who decommissioned the client’s case between 01.05.1999 and 31.05.2011. A. and
the defendant said that he worked as a construction site supervisor and construction machine operator before the company that took over,
stating that the contract has been terminated by the respondent employer without a justifiable reason, severance pay, notice
his compensation includes that he will receive week-break work, receive overtime work, receive annual leave and general vacation
he has requested the collection of his receivables from the defendant.
Summary of Respondent’s Response:
The defendant has not responded to the lawsuit.
Summary of the Court Decision:
The court decided to dismiss the case.
Appeal:
Karan appealed to the Supreme Court of Public Prosecutor’s Office for the violation of the law for the benefit of the Public Prosecutor.
Reason:
324 of Law No. 6100. in the article ”advance for the substitution of evidence” is regulated, according to which
each of the parties shall pay the advance determined by the court for the evidence it requests to substitute, the exact period given
it must be deposited in it. If the parties have jointly requested the substitution of the same evidence, the required expense is half
they pay in half as an advance (f,1). If one of the parties does not fulfill its advance obligation, the other
the party can deposit this advance. Otherwise, he is deemed to have renounced the substitution of the requested evidence (f. 2).
First of all, it should be noted that due to the fact that the evidence was not deposited during the time of the substitution advance, the case
in order for it to be mentioned that it has not been proven, first of all, this evidence is related to the case under dispute
it should be directly related to the proof of the claim. In this case, the plaintiff is responsible for the evidence that he has not invested his expenses
since he has been deemed to have given up, it may be that the case cannot be proven. So to speak, that evidence
it should not be possible to prove that case without it, the party has given up the evidence because it has not invested the evidence advance
when it is counted, this case should remain completely unproven so that it can be decided in this direction. In this regard, everyone
as is known, in practice, the expert report received by the judge solely due to the intensity of the work of the case
if it is not directly related to the proof, it is mentioned that the expert fee is not deposited and,
it would not be right to dismiss the case on the grounds that it cannot be proven.
According to the contents of the file; at the hearing dated 14.04.2016, the plaintiff instructed his deputy that “…the file is in ashes
by sending our file to Bursa Employment Court, an expert in the field of labor law
in return for receiving as many reports as more than the number of parties with the deposit, the expert’s labor and overtime
300.00 TL fee discretion, hearing of the missing 150.00 expert fee by the plaintiff’s attorney
within a definite period of 1 week from the date of delivery to the cashier of our court, the specified
in the event that the expert fee is not deposited with the plaintiff to the teller of our court within a certain period of time
the expert examination shall be deemed to have renounced the right to rely on the evidence and the file shall be deemed to be based on the existing evidence
according to the warning of the plaintiff’s deputy, who was present at the hearing, that he will be evaluated according to his condition, (he was warned) …”
it was decided. Although TL 150.00 was deposited by the plaintiff on 04.05.2016,
at the hearing dated 17.05.2016 by the court; Although it is seen that the expert witness’s expenses were not deposited within the exact period
since the case has not been proven by establishing an interim decision on the decommissioning of subparagraph 2, b of the last session
it has been decided to refuse.
In the concrete case, the expert fee that is requested to be stored by the court is as described above
since the subject of the dispute is not directly related to the proof of the claim in relation to the case, the time given is duly
it is not convenient and precise. Moreover, with the general and legal knowledge required by the profession of a judge
an expert cannot be listened to on issues that can be resolved. Compensation and receivables subject to litigation
its calculation also does not require technical and expertise. The entire scope of the file, the subject of the lawsuit will receive
together with the plaintiff’s witness statements, the plaintiff’s claims are heard with the plaintiff’s work before the defendant company
according to the understanding that the claims of a part of the receivables that are the subject of a lawsuit are also proved when evaluated
since the case could not be proven, the decision to reject the bet was erroneous and required a reversal.
Conclusion: The Civil Procedure Code No. 6100 of the Prosecutor General’s Office of the Supreme Court of Cassation
ephemeral 3. legal Procedure No. 1086, which continues to be applied in accordance with the article
427/6 of the Code of Civil Procedure. the described request to appeal for the benefit of the law based on the article
for the reason that with its acceptance the provision may be DISTORTED so as not to have an effect on the outcome, for the necessity of the file
The Court of Cassation was transferred to the Prosecutor General’s Office and a unanimous decision was made on 04.05.2018. (¤¤)
