T.C.
SUPREME
GENERAL ASSEMBLY OF LAW
ISSUE NO: 2018/7-179
DECISION NO: 2018/683
DATE OF DECISION: 4.4.2018
THE CASE OF EMPLOYEE RECEIVABLES IS THAT THERE IS NO LEGAL BASIS FOR CREATING A QUALITATIVE DIFFERENCE BETWEEN THE WORK BEFORE BEING RECRUITED AND THE WORK AFTER BEING RECRUITED, OR FOR DEC THE CLAIMANT AS IF HE HAD JUST ENTERED A JOB, IGNORING THE PREVIOUS WORK BEFORE BEING RECRUITED– IT IS NOT POSSIBLE TO EVALUATE THE FACT THAT THE EMPLOYEE, WHO IS ECONOMICALLY DEPENDENT ON THE EMPLOYER, DID NOT FILE A LAWSUIT DURING HIS WORK, AGAINST THE EMPLOYEE.
4857/m.5,29/7,53/3,60
ABSTRACT : The case is related to the request for collection of labor receivables. Although it does not change the nature of his previous work, it is clear that the legal ignoring of this work will lead to a violation of the principle of equality, since the plaintiff is constantly employed in similar jobs all year by recruiting him to the workforce. Moreover, the study staff by the staff before being taken to the next or previous work ignored by the creation of a qualitative difference between work without staff about the legal basis of the operation as a plaintiff got a new job there whatsoever. On the other hand, it is also not possible to evaluate the fact that an employee who works economically dependent on an employer has not filed a lawsuit during his working time against the employee. In the face of all these determinations and decisions of a precedent nature, it was incorrect to determine the degree and level of the plaintiff’s previous work before it was transferred to the staff by including it in the working time, and if there is a difference, the receivables should be ruled out, while the decision to dismiss the case on written grounds was made.
CASE: At the end of the trial held due to the “labor receivables” case between the parties; Samsun 2. Dec. The day of 04.07.2014 and the day of 2014/55, which were issued by the Labor Court on the refusal of the case.-2014/449 K. 7. the Court of Cassation on the request of the deputy plaintiff to examine the appeal of the numbered decision. The day of 15.12.2014 of the Legal Department and 18320/2014 E.-2014/22650 K. by his numbered decision;
“… The deputy plaintiff requested that his client, while working as a temporary worker, be placed on permanent staff in 2001 and continue his work until retirement, but that his placement was made incorrectly due to the fact that the periods he worked until the date he was placed on permanent staff were not taken into account, and that his degree and level be determined by taking into account the time he worked as a temporary worker, and that some of the differences caused by this incorrect placement will be determined.
The defendant’s deputy requested the dismissal of the case, arguing that the plaintiff’s claims have expired, and that the plaintiff’s work was started by making an adjustment in accordance with the relevant Collective Bargaining Agreement and October Protocols for the relevant period, and that it is not possible for the plaintiff to benefit from the provisions of the Collective Bargaining Agreement after retirement.
The court of the plaintiff with the passing of the staff working conditions implied by remaining silent for many years accepted as the new and the past period of adaptation after working as aforementioned, subject to the terms of request that is incompatible with the principles of wage labour law, collective bargaining in 2013, the plaintiff due to the retirement of the first arrangement, the regulation in question could benefit from, in accordance with the protocol dated 26.10.2000 signed between the employer and the Turkish Labor Union, it was decided to dismiss the case on the grounds that the plaintiff’s past claims were not in place because it was clearly and specifically stated that temporary workers in the plaintiff’s position would be transferred to permanent employee dec based on their current wages.
Work performed in workplaces where work is carried out only at a certain time of the year or is carried out all year round, but the work is concentrated at certain periods of the year, can be defined as seasonal work. The periods in question can be long or short, depending on the nature of the work. Jobs that are not always suitable for employing the same amount of workers and where, according to the nature of the activity carried out at the workplace, workers work intensively for certain periods of time each year, but in other periods of the year, employment contracts require a break until the beginning of the dec period of the following year, are considered seasonal work.
11 Of the Labor Code No. 4857 on seasonal employment contracts. in accordance with the provisions of the article, it can be made for a certain period of time, as well as established for an indefinite period. A fixed-term employment contract concluded for a single season ends spontaneously at the end of the season, and in this case, the employee will not be entitled to notice and severance pay.
In dec, if a fixed-term employment contract has been concluded between the employee and the employer in a seasonal job, and in the following years they have also been working with chained seasonal employment contracts, the employment contract will be of indefinite duration in accordance with the last paragraph of the article mentioned.
File scope is taken into account when initially takes on the seasonal character of the work between the parties at the date and time of the claimant on the grounds that changing every year the insurance premiums have been paid, the plaintiff without changing his job by being substitute to cover the whole year, it is noted that insurance premiums continue to be paid. When the above seasonal job descriptions and the determination in question are evaluated together; although the fact that the defendant is employed by the administration in similar jobs all year by recruiting the plaintiff and his friends does not change the nature of his previous seasonal work, ignoring it legally has unfair consequences. Likewise the staff that has become renewed as an indefinite-term contracts chained by the study staff before being taken to the next or previous work ignored by the plaintiff without the creation of a qualitative difference between work and staff of the operation as the legal basis whatsoever about his friends got a new job there.
In addition, if the court referred to the protocol dated 26.10.2000 signed between the respondent administration and the trade union of which the dectiff is a member, it should be noted that the Collective Bargaining Agreement can only be extended in favor of the employee with the rights granted to the workers in the Labor Code, but on the contrary, the regulations will not apply. For this reason, it is not possible to give validity to the protocol that has consequences against the employee.
Again, although it is connected to the Law of Obligations by its general principles, the main reason for the emergence of Labor Law as a sub- (private) branch of law by decoupling from it is that it regulates legal relations between parties that are unequal in structure. For this reason, it cannot be assumed that the employee who is dependent on the employer and whose economic future depends on the employer has tacitly accepted the current practice after the date of recruitment. In addition, the freedom to seek rights is under Constitutional guarantee and the time to exercise this right cannot be evaluated against the right holder dec
Mersin precedent the decisions taken by the courts in the nature of the work of our apartment 2014/131…140, 306…313, 386, 496…500, 757…761 Main numbered with the sentence, Sanliurfa admission decisions issued by the courts of our apartment…6077 Main Business 2013/5838 numbered with a warrant, Antalya granted admission decisions by the tribunal based on the work of our apartment with a warrant…2014/8391 8399 numbered, Artvin civil ( Business ) to accept the decisions given by the court…has finalized onanar to our apartment with a warrant based on 2014/10516 10530 numbered.
In the face of all these determinations and decisions of a precedent nature, it was incorrect to determine the degree and level of the plaintiff’s previous work before it was transferred to the staff by including it in the working time, and if there is a difference, the receivables should be ruled out, while the decision to dismiss the case on written grounds was made …”
at the end of the retrial, the court resisted the previous decision by overturning the grounds and returning the file to its place.
After it was understood that the decision to resist was appealed during the examination by the General Assembly of the Law and the documents in the file were read, the requirement was discussed:
DECISION : The case is related to the request for collection of labor receivables.
The deputy plaintiff claimed that his client’s time working as a seasonal employee was not taken into account at the time of recruitment, and that his rank and degree were determined to be incomplete, claiming that his rank and degree were determined and he requested and sued for the collection of some difference labor receivables, provided that his rights to surplus were reserved.
The defendant’s attorney defended the rejection of the case.
Due to the fact that the Samsun Provincial Special Administration’s legal personality was terminated by Law No. 6360 during the trial, the case was followed up by the Samsun Metropolitan Municipality deputy to whom the file was transferred by the Transfer Liquidation and Apportionment Commission.
7 and 22 of the Court of Cassation. Decisions are made by the Department of assessments on the law after 26.10.2000 dated in accordance with the provisions of the protocol on the staff of the plaintiff is passed on to know the conditions of continuous operation, the operation is carried out with the consent of, although after a period of more than ten years, without considering the provisions of the protocol, the difference cannot request a fee in 2013 the Collective Labour Agreement Article 5 of the protocol to the framework agreement is brought to different editing where, in favor of the plaintiff would make this arrangement also think the comment policy, in fact, many years have passed, after a request like this doesn’t fit with the rules set out in Article 2 of the Turkish civil code, if the plaintiff refuses to accept the protocol under the protocol, under Article 5 of the protocol of an employment contract by the employer, excluding the compensation of the defendant by paying for all the legal rights will be terminated by the employer stated that the plaintiff did not choose this path, and therefore cannot claim this later, in determining the length of seniority, the decision of the General Assembly of Case Law and Jurisprudence to evaluate the entire period of work and its implementation in this direction will not lead to the emergence of the requested receivables, the administration’s decision to take action in this direction by agreeing to a collective bargaining agreement in 2013 will not grant the plaintiff such a right, because the plaintiff has left work long ago and retired, the status and conditions of each contract period are also different, In accordance with Article 19 of the Law on Trade Unions and Collective Bargaining No. 6356, it was decided to dismiss the case on the grounds that the employee whose trade union membership has expired cannot benefit from the conditions of adjustment, so it is not possible to comment in favor of the employee.
Upon the appeal of the plaintiff’s attorney, the judgment was overturned by the decision shown in the title section by the Special Department.
October 7 and 22 of the Supreme Court of Cassation on this issue in addition to the previous grounds by the Local Court. Although there is a difference of opinion between the Legal Departments, the decision to resist was made on the grounds that this dispute has not yet been resolved, and it is also taken into account that a solution has not been reached by the General Assembly of Dec.
The decision to resist was appealed by the acting plaintiff.
In a concrete case, the plaintiff’s work that has passed in the status of a seasonal worker before being transferred to the permanent staff can be taken into account in determining the degree and level of the permanent staff by including it in the working time, whether the difference will qualify for receivables according to the result to be reached here.
First of all, the concept of seasonal work should be explained in order to resolve the dispute.
As is known, although the working conditions of seasonal workers are regulated by labor laws in our labor law legislation, a complete definition of seasonal work has not been made, nor has it been clearly stated which jobs are seasonal jobs.
The provisions on seasonal work are 29/7 of the Labor Code No. 4857. and 53/3; 60 of the same Law. 12 of the Regulation issued on the basis of its article. and it is contained in articles 4 / f of the Law No. 394 On the Week Break.
In these provisions, the definition of seasonal work is not included, but it is stipulated that seasonal employees do not have annual leave rights, but can be covered by a collective bargaining agreement by defining workplaces where work is performed at any time of the year, is not performed at other times, or work is reduced.
Based on the above-described regulations, work performed at workplaces where work is concentrated at a certain time of the year can be defined as seasonal work.
As a matter of fact, in Article 2 /B of the Labor Code No. 3008, “a place of work that performs full or excessive activity in any period of the year and completely ceases to operate in another period or reduces its activity” is considered a seasonal place of work.
Seasonal work is also defined in the teaching as work in which activity intensifies at certain periods of the year, decreases or completely stops at other periods, and this situation repeats at certain periods of the year.
The periods in question can be long or short, depending on the nature of the work. Jobs that are not always suitable for employing the same amount of workers and where workers work intensively for certain periods of time each year, depending on the nature of the activity carried out at the workplace, but require a break in employment contracts at another time of the year until the beginning of the dec period of the following year, can be considered seasonal work.
As a matter of fact, the 13.11.2013 day and 2013/22-1170 E of the General Assembly of seasonal affairs Law.- 2013/1571 K.; 07.03.2012 days and 2011/9-755 E.- 2012/117 K. with 30.11.2011 days and 2011/9-596 E.-2011/725K. in their numbered decisions, they are also defined as jobs that occur at certain periods of the year according to the nature and structure of the job or are worked in accordance with the activities that increase during these periods.
It should be noted that the need to decisively examine whether the work is a seasonal job, according to the nature of the work and the place of work, should also not be ignored.
On the other hand, another aspect that should be examined is the “equal transaction debt”.
The principle of treating equally applies to all areas of law and is a debt recognized by modern labor law, which refers to the employer’s obligation to treat workers working at work equally in terms of labor law, to apply equal working conditions to workers working in jobs of equal value, and is usually based on equity (Çelik, N.: Business Law Courses, Istanbul 2009, 22. Basi, p.:177 ).
The principle of equality is enshrined in Article 10 of the Constitution of the Republic of Turkey No. 2709. in the article it is arranged in general terms. According to the first paragraph of the said article, “Everyone is equal before the law without discrimination for reasons of language, color, gender, political opinion, philosophical belief, religion, sect and so on”.
In the same way, by the Law No. 5170 dated 07.05.2004, Article 10 of the Constitution. in the second paragraph added to the article “Women and men have equal rights. The state is obliged to ensure that this equality is implemented,” the provision is given.
This Constitutional principle is enshrined in Article 5 of the Labor Code No. 4857 on labor law. it finds its expression in the article.
5 of the Law No. 4857 entitled “The principle of acting equally”. in the article;
“Language, race, gender, political thought, philosophical belief, religion and sect and similar reasons cannot be distinguished based on business relations.
An employer cannot take different actions against a full-time employee, a partial-time employee, an indefinite-term employee, an employee who works for a certain period of time, unless there are good reasons.
Unless the employer requires biological or qualitative reasons for the work, an employee is required to: in the conclusion of an employment contract, the creation, implementation and termination of its terms,
he cannot perform different operations directly or indirectly due to gender or pregnancy.
A lower wage cannot be decided for a job of the same or equal value due to gender.
The application of special protective provisions due to the gender of the worker does not justify the application of a lower wage.
If the provisions of the above paragraph are violated during or at the termination of the employment relationship, the employee may claim other rights that he is deprived of, such as an appropriate compensation in the amount of his wages for up to four months. Article 31 of the Trade Unions Law No. 2821. the provisions of the article are reserved.
- without prejudice to the provisions of the article, the employee is obliged to prove that the employer has acted contrary to the provisions of the above paragraph. However, when the employee presents a situation that strongly indicates the possibility of the existence of a violation, the employer is obliged to prove that such a violation does not exist.” the arrangement has been included.
The obligation to make equal transactions is a debt that, as a rule, arises after the establishment of an employment relationship and prevents the employer from making arbitrary practices (Yıldız, Gaye B.: The Employer’s Obligation to Make Equal Transactions, Ankara 2008, p. 68 ).
Accordingly, the employer, as a rule, is obliged to treat the workers working at the workplace equally, to apply equal working conditions. The employer is under the obligation not to act differently unless there is a justified reason, to benefit equally from social assistance and monetary benefits, and there is an obligation to officially observe the equal transaction debt related to public order.
But equal transaction debt does not mean that the employer will treat all workers equally in an absolute form.
There is no mention of the principle of equality for workers subject to different working conditions. Decoupage can be made between workers in this situation. However, this must be in accordance with the nature of the work performed, objective measurements ( Steel, a.g.e., p. 179 ).
The obligation to act equally applies to workers of the same nature. The employer can create different working conditions based on objective reasons such as the work done by the employee, his expertise, education, seniority, as well as subjective reasons such as diligence, talent, merit.
Considering the concrete event in the light of the above explanations; with the acceptance of the plaintiff’s work, seasonal work 02.02.2001 a portion of the year prior to the date executed, the last claimant to the worker in the history of 02.02.2001 permanent staff after that date, the Directorate of rural services under continuous work in the workplace, the work being insurance premiums that were paid by a substitute without changing to cover the whole year, the Provincial Directorate of rural services and the workplace transferred to the Provincial Administration Law No. 5286 closed with Samsun, Samsun Provincial Administration Law No. 6360 of the legal personality of the file Transfer closed, It is understood that it has been transferred to the Samsun Metropolitan Mayor’s Office by the Liquidation and Apportionment Commission.
In this case, it is clear that even though the plaintiff is employed in similar jobs all year by being hired as a permanent employee does not change the nature of his previous work, legally ignoring this work will result in a violation of the principle of equality.
Moreover, the study staff by the staff before being taken to the next or previous work ignored by the creation of a qualitative difference between work without staff about the legal basis of the operation as a plaintiff got a new job there whatsoever.
On the other hand, it is also not possible to evaluate the fact that an employee who works economically dependent on an employer has not filed a lawsuit during his working time against the employee.
As a matter of fact, the General Assembly of the Law is scheduled for 11.11.2015 days and 2015/7-1115 E.-2015/2541 K.; 29.06.2016 days and 2016/22-1115 E.-2016/893 K.; 03.05.2017 days and 2017/22-2094 E.-2017/910 K.; 13.12.2017 days and 2016/ 9 ( 7 )-100 E.-2017/1688 K. and 13.12.2017 days, and 2016 9 ( 7 )-594 E.-2017/1694 K. the same conclusion was reached in their numbered decisions.
On the other hand, the provisions of the law which the defendant during the trial phase with 6360 Samsun provincial administration and the legal personality of the basis of the case file transferred by Samsun Metropolitan Municipality deputy transfer and allocation is followed by the liquidation Commission in the case where the defendant in writing of the decision as the title Samsun provincial administration if it is not correct this mistake can be corrected at the scene of the nature of the material, because it is also the cause of destruction have not been in error; point taken, but have been contented.
Therefore, it is necessary to comply with the mutual claims and defenses of the parties, the minutes and evidence in the file, the Special Chamber decision adopted by the General Assembly of Law, according to the reasons explained in the decision to overturn, while resisting the previous decision is contrary to the procedure and the law.
Therefore, the decision to resist must be overturned.
CONCLUSION : It was unanimously decided on 04.04.2018 that the decision to resist would be OVERTURNED due to the reasons shown in the decision to overturn the Special Chamber by accepting the appeals of the plaintiff’s deputy, that the advance fee of the appeal would be returned to the depositor if requested, and that the way to correct the decision would be closed.
