TC
high
GENERAL ASSEMBLY
NUMBER: 2018/7-179
DECISION NO: 2018/683
DECISION DATE: 4.4.2018
THE EMPLOYEE RECEIVABLES SITUATION IS A SITUATION WHERE THERE IS NO LEGAL BASIS TO MAKE A QUALITATIVE DIFFERENCE BETWEEN THE JOB BEFORE HIRING AND THE JOB AFTER HIRING, OR TO TREAT THE PLAINTIFF AS IF HE HAD JUST ENTERED THE JOB AND IGNORE AND Decry HIS JOB BEFORE HIRING. IT IS NOT POSSIBLE TO ASSESS WHETHER AN EMPLOYEE WHO IS ECONOMICALLY DEPENDENT ON THE EMPLOYER HAS NOT FILED A LAWSUIT AGAINST THE EMPLOYEE DURING THE TIME HE HAS BEEN WORKING.
4857/m.5,29/7,53/3,60
SUMMARY : The case relates to the request for the collection of labor receivables. Although it does not change the nature of the work that the plaintiff has done before, it is clear that ignoring this job legally will lead to a violation of the principle of equality, despite the fact that he has been working in similar jobs for a year by being hired as a permanent employee.
However, there is no legal basis for creating a qualification difference between the job before being hired and the job after being hired, or ignoring the plaintiff’s job before being hired, as if he had just entered the job. Dec. On the other hand, the fact that an employee who works economically dependent on the employer has not filed a lawsuit against the employee during the working period cannot also be evaluated. In the face of all these determinations and decisions that are precedent, it has been seen that it is wrong to determine the degree and level of the plaintiff’s job before it is transferred to the staff by including it in the working time, excluding receivables if there is a difference, and deciding to dismiss the case with written justification.
JOB: At the end of the trial held between the parties due to the case of “he will get a job”; Samsun 2. Dec. Gap. 2014 on 04.07.2014 on the day of 2014, 2014/55 E issued by the Labor Court upon the rejection of the case.-2014/449 K. with the numbered decree; 7. 18320/2014 E of the Civil Chamber of the Court of Cassation on 15.12.2014 upon the request of the plaintiff’s attorney for the review of the appeal.-2014/22650 K. with a numbered decree;
“… The plaintiff’s attorney requested that his client be hired in 2001 while working as a temporary employee and continue working until retirement, but his placement was made incorrectly due to not taking into account the periods he worked until the date he was hired, to determine the degree and level taking into account the time he worked as a temporary employee, to determine some differences caused by this incorrect placement.
Defendant’s attorney requested the dismissal of the case by claiming that the plaintiff’s receivables had expired, that the plaintiff’s work had been started by making adjustments in accordance with the Collective Bargaining Agreement and the October Minutes related to the relevant period, and that it was not possible for the plaintiff to benefit from the provisions of the Collective Bargaining Agreement after retirement.
The court concluded that the collective bargaining agreement concluded in 2013, the first regulation due to the plaintiff’s retirement, can benefit from this regulation in accordance with the protocol dated 26.10.2000 signed between the employer and the Turkish Labor Union, in which the working conditions of the personnel, implied by the plaintiff’s silence for many years, are considered a new and past adjustment period after working in the above-mentioned manner, depending on the demand conditions incompatible with the principles of wage law, the collective bargaining agreement concluded in 2013 can benefit from this regulation,
in accordance with the protocol of 26.10.2000 signed between the employer and the Turkish Labor Union Dec., due to the fact that it was clearly and specifically stated that temporary workers in the plaintiff’s position would be transferred to permanent employee status based on their current wages, it was decided to dismiss the case on the grounds that the plaintiff’s past claims were inappropriate.
Although it is only worked at a certain time of the year or all year round in workplaces, jobs where the work is concentrated at certain periods of the year can be defined as seasonal jobs. The periods in question may 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 are intensively employed for certain periods of time every year according to the nature of the activity carried out at the workplace, but in other periods of the year, employment contracts provide for a break until the beginning of the interim period of the following year, are considered seasonal jobs. Dec.10.Dec.10.dec.10.dec.10. dec. 10. dec.10. dec.10. dec.10. dec.
11 of the Labor Law No. 4857. in accordance with the provision of the article on seasonal employment contracts, it can be established for a certain period of time as well as for an indefinite period. A fixed-term employment contract concluded for a single season expires spontaneously at the end of the season, and in this case, the employee is not granted the right to notice and severance pay.
If a fixed-term employment contract was concluded between the employee and the employer in Decembers for seasonal work and if the following years were also worked with chain seasonal employment contracts, the employment contract will be of indefinite duration according to the last paragraph of the said article.
Paying paid insurance premiums to the plaintiff on the date and time of payment of the insurance premiums that change each year, when the plaintiff initially considers the seasonal nature of the work between the parties, it is seen that the plaintiff works as a substitute to cover the whole year without changing his job, insurance premiums continue to be paid. Dec.
When the above seasonal job descriptions and this determination are evaluated together; although the defendant’s employment by the administration in similar jobs all year does not change the nature of his previous seasonal job by hiring the plaintiff and his friends, ignoring this has legally unfair consequences. Likewise, the fact that the personnel who are chained by the work staff and chained by the work staff before the next or previous employment are ignored by the plaintiff without making a qualitative difference between the work and the business staff also has unfair consequences for entering a new job in any way about their friends as a legal basis. Dec.
Furthermore, if the court has referred to the protocol dated Dec. 26.10.2000 signed between the defendant administration and the union of which the defendant is a member, it should be stated that the Collective Bargaining Agreement can only be concluded in favor of the employee with the rights granted to employees in the Labor Code, but on the contrary, the regulation will not be applied. For this reason, it is not possible to give validity to the protocol that has consequences against the employee.
Again, although it is related to the Law of Obligations in general principles, the main reason why Labor Law has Decoupled from it and emerged as a sub-branch of (private) law is that it regulates legal relations between structurally unequal parties. Therefore, it cannot be assumed that the employee, who is dependent on the employer and whose economic future depends on the employer, tacitly accepts the current practice after the date of his employment. Moreover, the freedom to seek rights is under Constitutional guarantee and the duration of the exercise of this right cannot be evaluated against the rightholder. Dec.
The decisions made by the Mersin precedent courts in the nature of the work done by our department 2014/131…140, 306…313, 386, 496…500, 757…761 Decisions of acceptance issued by the Şanlıurfa precedent courts in the nature of the work done by our department, 6077 Main Business decision 2013/5838, Antalya precedent courts acceptance decisions based on the work done by our department, 2014/8391 8399, Artvin Law ( Business ) Court decisions 2014/10516 10530 have been finalized to our department with a declaration of acceptance numbered 10530.
In the face of all these determinations and decisions that are precedent, it is not correct to determine the degree and level of the plaintiff’s job before being transferred to the staff by including it in the working period, to exclude receivables if there is a difference, to decide to dismiss the case with written justification …”
At the end of the retrial, the court resisted the previous decision by overturning the grounds and returned the file to its place.
After it was understood that the decision to resist was appealed in the examination conducted by the General Assembly of Law, and the document in the file was read, the following issue was discussed:
DECISION : The case relates to the request for collection of labor receivables.
The plaintiff’s attorney claimed that the time spent by his client as a seasonal worker was not taken into account during the recruitment, his rank and degree were found incomplete, claiming that his rank and degree had been determined, requested and sued for the collection of some labor difference, without reserving redundancy rights.
The defendant’s lawyer argued for the dismissal of the case.
During the trial, the file was followed up by the Deputy Mayor of Samsun Metropolitan Municipality, who was transferred by the Transfer Liquidation and Distribution Commission due to the termination of the legal entity of the Samsun Provincial Special Administration by Law No. 6360.
7 and 22 of the Supreme Court. According to the provisions of the protocol dated 26.10.2000, the decisions were passed in order for those in the plaintiff’s staff to know the permanent working conditions, the transaction was made with their consent, despite the passage of more than ten years, without taking into account the provisions of the protocol, 5 of the Collective Bargaining Agreement of 2013. when the article of the framework agreement is brought to a different regulation that a wage difference cannot be claimed, we also think that this regulation will be made in favor of the plaintiff as an interpretation policy, in fact, after many years, such a request should be made according to Article 2 of the Turkish Civil Code.
if the claimant does not comply with the rules specified in article 5 of the protocol and refuses to accept the protocol in accordance with the protocol, the claimant does not comply with the rules specified in Article 5 of the protocol. in accordance with the article, it is stated by the employer that the employment contract will be terminated by the employer by paying all legal rights, except for the defendant’s compensation.
The plaintiff did not choose this path and therefore cannot request it later, the decision to determine the length of seniority, the Case law of the Supreme Court and the General Assembly of the Case Law of the Supreme Court to evaluate the entire working period and apply it accordingly will not lead to the emergence of the requested receivables, the decision of the administration to act in this direction by entering into a collective bargaining agreement in 2013 will not grant the plaintiff such a right, the plaintiff left his job a long time ago and retired, the situation and conditions of each contract period are also different, 19 of the Law on Trade Unions and Collective Bargaining numbered 6356.
in accordance with the article, it was decided to dismiss the case on the grounds that the employee whose union membership has expired cannot benefit from the adjustment conditions, 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 at the land registry office by the Directorate of the Special Department.
October October 7 and 22 decisions of the Court of Cassation, in addition to the previous reasons of the Local Court, were supplemented by the decisions of the Court of Cassation dated October 22 on this issue. 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 was also taken into account that a solution could not be reached at the Decembers General Assembly.
The decision to resist was appealed by the plaintiff’s attorney.
In a concrete case, it will be possible to take into account the work that the plaintiff spent as a seasonal worker before switching to permanent staff in determining the degree and level of permanent staff by including it in the working time, and to Decipher whether the difference will be receivable according to the result to be reached here.
In order to resolve the dispute, the concept of seasonal work must first be explained.
As it 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, and it has not been clearly stated which jobs are seasonal jobs.
Provisions related to seasonal work 29/7 of the Labor Law No. 4857. article 53/3 of the same Law as Article 60. it is located in the article. 12. 12 of the Regulation issued on the basis of the article. it is included in the article and Article 4/ f of the Law No. 394 on Week Holidays.
These provisions do not include a seasonal job description, but they are linked to the provision that seasonal employees do not have annual leave rights, but they can be taken into the scope of a collective bargaining agreement by defining workplaces where work is done at any time of the year, not done at other times, or work is reduced.
According to the regulations described above, the work done in workplaces where work is concentrated during a certain period of the year can be defined as seasonal work.
As a matter of fact, in Article 2 / B of the Labor Law No. 3008, “a workplace that fully or excessively operates during any period of the year, and completely closes or reduces its activity during another period” is considered a seasonal workplace.
Seasonal work is also defined in teaching as work in which the activity intensifies at certain periods of the year, decreases or stops completely at other periods, and this situation repeats at certain periods of the year.
These periods may 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 are intensively employed for certain periods of each year according to the nature of the activity carried out at the workplace, but at another time of the year, requiring a break in employment contracts until the beginning of the Decemberration of the following year, can be considered seasonal jobs. Decemberration is not always suitable for employing the same amount of workers and requires a break in employment contracts until the beginning of the interim period of the following year.
As a matter of fact, the day of 13.11.2013 and the Law of the General Assembly on Seasonal Affairs numbered 2013/22-1170 E- 2013/1571 K.; 07.03.2012 day and 2011/9-755 E.- 2012/117 K. with 30.11.2011 days and 2011/9-596 E .- 2011/725K. in its numbered decisions, it is also defined as works that occur at certain periods of the year according to the nature and structure of the work or are worked in accordance with increasing activities during these periods.
It should also be noted that the need to Decently examine whether there is a seasonal job according to the nature of the job and the workplace should not be ignored.
On the other hand, another issue that needs to be examined is the “equal transaction debt”.
The principle of equal treatment applies in all areas of law and is a debt recognized by modern labor law, it refers to the employer’s obligation to treat employees working at the workplace equally in terms of labor law, to apply equal working conditions to employees working in jobs of equal value and is usually based on fairness (Çelik, N.: Business Law Courses, Istanbul 2009, 22. Basi, p.:177).
The principle of equality is defined in Article 10 of the Constitution of the Republic of Turkey numbered 2709. it is located in the article. It is arranged in general terms in the article. According to the first paragraph of the article in question, “Everyone is equal before the law, regardless of language, color, gender, political opinion, philosophical belief, religion, sect and similar reasons.”
In the same way, with the Law No. 5170 dated 07.05.2004, the 10th Amendment 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 judgment is contained.
This Constitutional principle is based on Article 5 of the Labor Law No. 4857 on labor law. it is located in the article. it finds its expression in matter.
5 of the Law No. 4857 entitled “The principle of equal treatment”. in the article;
“No distinction can be made in commercial relations on the grounds of language, race, gender, political opinion, philosophical belief, religion and sect and similar reasons.
The employer may not take different actions against a full-time employee, a part-time employee, an indefinite-term employee, or an employee working for a certain period of time unless there is a justified reason.
The employer may not take any other direct or indirect action against the employee in the conclusion of the employment contract, the creation, implementation and termination of the terms of employment, due to gender or pregnancy, unless biological or work-related reasons require.
A lower wage cannot be agreed due to gender for a job of the same or equal value.
The application of special protective provisions due to the gender of the employee does not justify the application of lower wages.
In case of violation of the provisions of the above paragraph or at the termination of the employment relationship, the employee may claim other rights that he has been deprived of, such as an appropriate compensation in the amount of his salary for up to four months. 31 of the Trade Union Law No. 2821. its substance. 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 in violation of the provisions of the above paragraph. However, when the employee presents a situation that shows a strong indication of the existence of a violation, the employer is obliged to prove that such a violation does not exist.” the arrangement has been added.
The obligation to perform equal transactions is a debt that, as a rule, arises after the establishment of the employment relationship and prevents the employer from engaging in arbitrary practices (Yıldız, Gaye B.: The Obligation of the Employer to Take Equal Action, Ankara 2008, p. 68 ).
Accordingly, the employer, as a rule, is obliged to treat the employees working at the workplace equally and to apply equal working conditions. The employer is under the obligation not to act differently unless there is a justified reason, to make equal use of social assistance and monetary benefits, and to officially comply with the equal treatment obligation related to public order.
However, equal treatment debt does not mean that the employer will treat all workers equally in an absolute sense.
The principle of equality for workers subject to different working conditions was not mentioned. In this case, Decoupage can be performed between workers. However, this should be in accordance with the nature of the work performed and objective measurements (Çelik, age, p. 179).
The obligation to act equally applies to workers of the same nature. The employer can create different working conditions for subjective reasons such as hard work, ability, merit, as well as for objective reasons such as the job, expertise, education, seniority of the employee.
In the light of the above explanations, when the concrete event is taken into account; with the acceptance of the plaintiff’s job, part of the year before 02.02.2001 was performed in seasonal work, the employee was employed as a permanent staff after 02.02.2001 as the last plaintiff, at the workplace that is constantly employed in the Provincial Directorate of Rural Services, insurance premiums were paid by a substitute and were not changed to cover the entire year, the workplace transferred to the Provincial Directorate of Rural Services was closed in Samsun by the Provincial Administration Law 5286, the transfer file of the legal entity by the Samsun Provincial Administration Law 6360 it was closed, It is understood that it was transferred to Samsun Metropolitan Municipality by the Liquidation and Taksim Commission.
In this case, it is clear that even if the plaintiff works in similar jobs all year by being hired as a permanent employee and does not change the nature of the work he has done before, ignoring this job legally will lead to a violation of the principle of equality.
However, there is no legal basis for creating a qualification difference between the work before hiring and the work after hiring, or for making a decision to hire the plaintiff by ignoring the work before hiring Dec Dec, as if he had just entered the job.
On the other hand, the fact that an employee who works economically dependent on an employer has not filed a lawsuit against the employee during the working period cannot also be evaluated.
As a matter of fact, the day of the General Assembly of the Law is 11.11.2015 and numbered 2015/7-1115