T.R. SUPREME COURT
- Law Office
Basis: 2015/6421
Decision: 2016/19279
Decision Date: 27.06.2016
ACTION ON EMPLOYEE RECEIVABLES – TERMINATION OF EMPLOYMENT RELATIONS BY RETIREMENT – WHETHER THE PRE-TRANSFER PAYABLES OF THE PROVINCIAL ADMINISTRATION, whose LEGAL Personality has been Abolished, WERE TRANSFERRED TO ANY INSTITUTION – THE PROVISION IS BROKEN
SUMMARY: In the case that is the subject of the lawsuit, it will be necessary to determine who is responsible for the annual leave fee demanded since the plaintiff employee retired and terminated the employment relationship before the transfer. First of all, after the transfer, liquidation and distribution commission decision was brought and it was determined whether the pre-transfer debts of the special provincial administration, whose legal personality was abolished, were transferred to any institution, if there is a transfer, the responsibility will belong to this institution or organization that took over the debt, there is no decision regarding the transfer of debts. On the other hand, if the transferee of the assets and receivables of the aforementioned special provincial administration will have to be held responsible for the debts, in cases where an institution or organization with the capacity to be a party to the lawsuit cannot be determined to be held liable with all these investigations, the debt is a debt arising from the work of the special provincial administration, which is the local administration unit, and the transfer, liquidation and Considering that the obligation to establish the commission that should carry out the distribution transactions is also given to the civil administration, the case should be concluded by being directed to the Ministry of Interior.
(4857 S. K. m. 41, 46, 47) (6360 S. K. m. 1, 3, late. m. 1)
Case: The plaintiff requested that the national holidays and public holidays, night shift and overtime wages be paid.
The court partially granted the request.
Although the defendant’s lawyer appealed during the sentence, the file was examined after the report prepared by the Investigation Judge for the case file was heard, and the need was discussed and considered:
Decision: The plaintiff stated that he was working at the defendant’s workplace, national holidays and general holidays, week holidays, night shifts, overtime and annual leave receivables were not paid and requested the collection from the defendant.
The defendant defended the dismissal of the case.
The court decided to accept the case in line with the collected evidence and the expert report.
Decision appealed against the defendant’s representative.
Since the Manisa Special Provincial Administration, which was shown as the defendant while the case was pending, was abolished by law, a dispute arose regarding the determination of the title of the defendant party.
Law No. 6360 on the Establishment of Metropolitan Municipalities and Twenty-Six Districts in Thirteen Provinces and Amending Some Laws and Decrees with the Force of Law, with the 1st paragraph of the 1st article, metropolitan municipalities were established in some provinces, and in the 5th paragraph, the special provincial administrations in these provinces were abolished. Article 36, titled, states that these provisions of the Law will enter into force in the first local administration elections. With the enactment of the aforementioned Law with the first local administration elections after the date of its adoption, the legal personality of Erzurum Special Provincial Administration came to an end while the case was pending.
With the second paragraph of the 3rd article of the Law No. 6360; references to special provincial administrations in the legislation are deemed to be made to the ministries, affiliated or related organizations of the ministries and their provincial organizations, treasury, governorships, metropolitan municipalities and their affiliated organizations or district municipalities, according to their relevance, for special provincial administrations whose legal personality has been abolished within the scope of this Law. The authorities, duties and responsibilities given to the special provincial administrations by the Law on Special Provincial Administration dated 22.02.2005 and numbered 5302 and other legislation will be used and fulfilled by these institutions and organizations, and the period in which the said special provincial administrations operate as the special provincial administration with their ongoing lawsuits in the courts. It is clearly regulated that the addressee in the lawsuits to be filed regarding the transactions and transactions is the relevant institution and organization from which the transfer transaction is made. In this case, it is undisputed that the lawsuits against the abolished special provincial administrations will be directed to the institution and organization to which they are transferred, according to the person concerned. In cases brought against the special provincial administration in concrete disputes, first of all, it is necessary to determine to which institutions and organizations the issues related to the activities and transactions that constitute the subject of the lawsuit have been transferred, and whether the transferee has a legal personality or not, and to whom the title of defendant will be directed.
In the 1st paragraph of the Provisional Article 1 of the Law No. 6360, which regulates the transfer, liquidation and distribution transactions of the special provincial administrations whose legal personality has been terminated; In order to carry out the transfer, liquidation and distribution transactions, a transfer, liquidation and distribution commission will be established by the governor, under the chairmanship of a deputy governor, with the participation of the representatives of institutions and organizations that the governor deems appropriate, and the relevant mayors, and sub-committees may also be established upon the appointment of the governor to assist this commission, 4. Provincial special administrations whose legal personality has been abolished by this law in the paragraph; its personnel, all kinds of movable and immovable properties, and their rights, receivables and debts in accordance with the provisions of this Law.
The sale, allocation and rental of immovable properties of these administrations, the conclusion of labor and collective labor agreements, all kinds of zoning practices (except for construction permits), the sale of construction machinery and other vehicles and their borrowings are subject to the approval of the Ministry of Interior, In paragraph . institution or district municipality, the transfer will be implemented on the date of the first local administrations general election to be held and those that have been allocated by the Ministry of Finance to special provincial administrations, municipalities and village legal entities whose legal entities have been abolished as per article 1 of this Law; in order to fulfill the public duties assigned to them by the founding laws and by the decision of the commission; It is regulated that it will be deemed to have been allocated to ministries, subsidiaries or related organizations of ministries, investment monitoring and coordination departments, metropolitan municipalities, subsidiaries of metropolitan municipalities and district municipalities according to their relevance.
Within the scope of these regulations, there is no regulation in the aforementioned law as to who is the party in the lawsuits filed for the collection of labor receivables that arose before the transfer and could not be transferred to an institution or organization. In the event that is the subject of the lawsuit, it will be necessary to determine who is responsible for the annual leave fee requested, since the plaintiff employee retired and ended the employment relationship before the transfer. First of all, after the transfer, liquidation and distribution commission decision was brought and it was determined whether the pre-transfer debts of the special provincial administration, whose legal personality was abolished, were transferred to any institution, if there is a transfer, the responsibility will belong to this institution or organization that took over the debt, there is no decision regarding the transfer of debts. On the other hand, if the transferee of the assets and receivables of the aforementioned special provincial administration will have to be held responsible for the debts, in cases where an institution or organization with the capacity to be a party to the lawsuit cannot be determined to be held liable with all these investigations, the debt is a debt arising from the work of the special provincial administration, which is the local administration unit, and the transfer, liquidation and Considering that the obligation to establish the commission that should carry out the distribution transactions is also given to the civil administration, the case should be concluded by being directed to the Ministry of Interior.
Conclusion: It was unanimously decided on 27.06.2016 that the appealed decision be OVERFINED for the reasons written above, and that the appeal fee paid in advance be returned to the relevant person upon request. (¤¤)
