TC
Supreme
law office
ISSUE NO.: 2016/19742
DECISION NO:2018/2740
DECISION DATE: 22.03.2018
COURT : Employment Tribunal
THE FILE INDICATING THAT THE EMPLOYEE WILL RECEIVE LABOR IN THE REQUEST FOR SERVICE DETERMINATION IS STRONG EVIDENCE AND IS NOT CONCLUSIVE EVIDENCE.
The plaintiff has requested a final determination of the work performed between 08 Dec 02 Dec 2007 and 13 Dec 01 Dec 2009 at the workplace belonging to the defendant employer.
The court has decided to accept the request as stated in the decision. After the decision was appealed by the defendant’s attorney, it was understood that the appeal request was in place, the minutes were arranged by reading the documents in the file, the necessity of the work was evaluated and the following decision was made.
decision
The case relates to the defendant’s request to determine that the defendant worked at the workplace Decently between 08.02.2007 and 13.01.2009. Plaintiff Decried the defendant’s work between 08.02.2007 and 13.01.2009.
The court decided to accept the case.
Dispute is collected at the point whether the claimant’s notification request has been proved in terms of procedure and merits.
79/10 of Law No. 506, which constitutes the legal basis of the case. and 86/9 of Law No. 5510. although its articles do not provide for a special method of proof in cases of determination of such services, since the nature of the case concerns public order, it requires special sensitivity and care
It should be carried out according to the established case law of the Supreme Court and, increasingly, of our Department. In such cases, first of all, it is necessary to investigate by method whether the documents related to the plaintiff’s work were issued by the employer. If this situation has occurred, it should be fully determined whether the workplace is really covered by the law or whether it is of a nature to be covered, and then the existence of the working phenomenon should be investigated with special sensitivity.
The investigation of the incident can be proved by any kind of evidence, but the subject matter, the nature of the work, the start and end dates of the words are important, the witness should be evaluated and the witnesses should be listened to and witnesses should be selected from past employees who worked at the same job and on the employer’s payroll or neighboring official records, in the employer’s official records and payrolls who worked in the same job.
With the statements of these witnesses, the existence of the work should be determined in such a way that there is no doubt and hesitation. 16.9.1999 Day of the General Assembly of Civil Chambers of the Court of Cassation 1999/21-510-527 , day 30.6.1999 1999/21-549-555- 3.11.2004 the day 2004/21-480-579 the numbered decision is also in this direction.
The case file regarding the labor receivables in terms of service determination request is strong evidence and is not conclusive evidence.
In the concrete case, it has been understood that the court has concluded that he will receive labor based on the documents and records contained in the case file, and accordingly, it is wrong to reach a written conclusion without taking into account that the final declaration of labor will not be the basis alone in the service determination case.
In case the defendant is the subject of a dispute, the insured person chooses his surname at work and shows the payroll period as an official witness, if he is not satisfied with witness statements or if the address cannot be reached, public organizations such as the Social Security Institution, Tax Office, municipality and police department apply for the employer’s or employer’s workplace neighbor employees’ statements in the official records of the past, taking into account that the incident qualitatively concerns public order, the evaluation of all the evidence collected by expanding the investigation and the decision to be made by the Court according to the result is made taking into account whether there has been a loss of rights in the case.
Regardless of these material and legal facts, the court’s establishment of a written judgment with incomplete examination and research is contrary to the procedure and the law and is the reason for the violation. In this case, the objections of the defendant’s workplace in these aspects should be accepted and the judgment
it should be broken down.
CONCLUSION: It was unanimously decided to OVERTURN the judgment and return the appeal fee to the defendant for the reasons explained above on 22.03.2018.