Lawsuits filed by employees who work without an insurance notice in order to insure these periods of work that are uninsured are called service detection lawsuits.
In accordance with social insurance and General Health Insurance Law No. 5510 of 86/7; the monthly premium and service document granted by the employer or withholding tax and premium service Declaration, which cannot be determined by the institution where they work or not insured, within five years from the end of the service they work by applying to an employment tribunal of the past year, they manage to prove ref receivables with them, the decision of the court with the number of days specified in premium payment monthly earnings totals are taken into consideration.
In service determination cases, the plaintiff employee is obliged to prove that he has worked at the workplace in question in the past years. The plaintiff can prove this fact with any kind of evidence. One of the most important pieces of evidence in service determination cases is witness evidence.
Although anyone who can prove the existence of the study can be shown as a witness, the Supreme Court case law seeks to listen to payroll witnesses (other employees who were notified to the Social Insurance Institution during the same period) who worked in the same workplace during the period in which they were allegedly working as a witness, or to listen to people who worked in workplaces adjacent to the workplace during the period in which the study was requested to be identified.
In the case of Service detection; subject of the case the plaintiff during the period, working with employers and their payroll enrollees with the same or similar work in other neighboring region employers and the employers ‘ payroll people who have been determined to run, should be consulted to gain enough knowledge and experience to obtain a conviction.
An exemplary Supreme Court Decision on the issue;
T.C. Supreme Court 21. It’s the Law Office. 2009/4317K. 2010/3846K.T. 06.04.2010
“The plaintiff asked the defendants to decisively determine the work that took place at the employer’s workplace between 01.10.2003 and 14.08.2006 and was not reported to the Institution.
As stated in the court decision, it has decided to reject the request.
After the appeal of the decision by the deputy plaintiff, it became clear that the appeal request was in due course, and after the report prepared by the Examining Judge and the papers in the file were read, the need for the job was considered and the following decision was determined.
decision
1- Refusal of the plaintiff’s appeals, which fall outside the scope of the following paragraph, according to the legally required reasons on which the provision is based on the evidence collected from the articles in the file,
2- The case concerns the plaintiff’s request to determine the work of the defendant employer between dec1.10.2003 and dec3.02.2005, which was not notified to the Institution based on the claim that he worked uninterrupted between 01.10.2003 and 14.08.2006 at his workplace.
Since the court could not prove that the plaintiff worked at the defendant’s workplace before 23.02.2005, the court decided to dismiss the case because the witness statements and the insurance period in the service schedule showed compliance.
The plaintiff’s work at the workplace was partially reported to the Institution based on the job entry notices, monthly and quarterly payrolls, and premiums were paid in accordance with the notification. On the other hand, the employment declaration and payrolls are the presumption that the plaintiff’s work is interrupted at work. It is beyond question that the opposite of the presumption should be proved with equivalent documents. In such cases, convincing and sufficient evidence should be sought that can establish the fact of work, and in such cases based on public order, the judge, in accordance with his duty, should expand the direct investigation to determine whether the insurance conditions have occurred. In this direction, the General Assembly of the Supreme Court Law Day 16.09.1999 1999/21-510-527 day 30.06.1999 1 999/21 -549-555, 05.02.2003 day 2003/21-35-64, 15.10.2003 day 2003/21-634-572 day 03.11.2004 2004/21-480-579 and number 2004/21-479578, 10.11.2004 day number 2004/21-538 01.10.2004 day, and the number 2004/21-have been highlighted in the decision of 629.
The respondent studies 306 days from work in 2005, in 2006 the output of 210 days on 15.08.2006 notification is the plaintiff, as shown, the witness ‘ brother of the plaintiff’s house, neighbor, brother of the plaintiff’s witness and the witness they are not Morgul payroll, payroll who the witness is with the plaintiff’s employment history Lutfi they didn’t give information about Emine, burgundy Safiya who was the witness’ s in 2005 stated that the plaintiff has entered the witness statements contradict each other, as can be seen, which is increasingly the provision will prevail.
The job to be done is to decisively take into account that there are more than one employees in the period payrolls for the period 20012005 given from the defendant workplace contained in the file and apply to the statements of other payroll witnesses to make a decision according to the result that all the evidence will be evaluated together and released.
In that case, the plaintiff’s appeals aimed at these aspects must be accepted, and the judgment must be overturned.
CONCLUSION: It was unanimously decided on 06.04.2010 to return the appeal fee to the plaintiff on request if the provision was OVERTURNED for the reasons described above.”
