The lawsuits filed by employees working without insurance notification in order to insure their uninsured working hours are called service determination lawsuits.
according to Article 86/7 of the Social Insurance and General Health Insurance Law No. 5510; Those who cannot be identified from the institution where they work or are not insured must apply to the labor court within five years from the end of the service they work to prove their receivables from the previous year, monthly earnings totals as much as the number of premium paying days determined by a court decision are taken into account.
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 detection cases is witness evidence.
Although anyone who can prove the existence of the study can be shown as a witness, the case law of the Supreme Court requires that payroll witnesses who worked at the same workplace during the alleged period of employment as a witness (other employees notified to the Social Insurance Institution during the same period) or people who worked in workplaces adjacent to the workplace during the period of study requested to be heard as witnesses.
In case of service determination; the plaintiff subject to the lawsuit must acquire sufficient knowledge and experience to make a conviction decision regarding the paid persons of employers who have been found to be working in the same or similar job as other employers and paid persons of employers in the neighboring region during the period of employment.
An exemplary Supreme Court Decision on the issue;
Turkish Court of Cassation 21. Law Firm. 2009/4317K. 2010/3846K.T. 06.04.2010
“The plaintiff has asked the defendants to Decipher the exact work performed at the employer’s workplace between 01.10.2003 and 14.08.2006 and not reported to the Institution.
The court decision stated that it had decided to reject the request.
Upon the appeal of the decision by the plaintiff’s attorney, it was understood that the appeal request was valid, and after reading the report and the document in the file issued by the Investigating Judge, the necessity of the work was evaluated and the following decision was made.
decision
1- According to the evidence obtained from the articles in the file, taking into account the legal reasons on which the judgment is based, the plaintiff’s appeal requests that fall outside the scope of the following paragraph should be rejected,
2- The case relates to the determination of the defendant employer’s job between 01 Dec 2003 and 3 Dec 2005, which was not reported to the Institution under the claim that he worked at the workplace continuously between 01 Dec 2003 and 14 Dec 08, 2006.
The court decided to dismiss the case by stating that the duration of the insurance in the witness statements and the service schedule is compatible due to the fact that the plaintiff could not prove that the defendant worked at the workplace before 23.02.2005.
The claimant’s work at the workplace was partially notified to the Institution based on job entry notices, monthly and quarterly payrolls, and premiums were paid in accordance with the notification. On the other hand, the employment entry declaration and the payrolls are the presumption that the plaintiff’s job was interrupted at work.
There is no doubt that the opposite of the presumption should be proved with equivalent documents. In such cases, convincing and sufficient evidence should be sought that can reveal the phenomenon of work, and in such cases based on public order, the judge should expand the direct investigation to determine whether the insurance conditions have been fulfilled in accordance with his duty. In this direction, the General Assembly of the Civil Chamber of the Supreme Court of Cassation dated 16.09.1999 and 1999/21-510-527 numbered, dated 30.06.1999 and 1999/21-549-555 numbered, dated 05.02.2003 and 2003/21-35-64 numbered, dated 15.10.2003 and 2003/21-634-572 numbered, dated 03.11.2004 and 2004/21-480-579 it was emphasized in resolutions No. 2004/21-538 dated 10.11.2004 and No. 2004/21-629 dated 01.10.2004.
The defendant notified on 15.08.2006 that he had been out of work for 306 days in 2005 and 210 days in 2006, as it can be seen, the plaintiff, witness ‘plaintiff’s roommate’, neighbor, plaintiff’s brother and witness Morgul were not on the payroll, Lutfi, a witness on the payroll, did not provide information about the plaintiff’s employment history, and Bordo Safiya, who testified in 2005, stated that the witness statements contradict each other, as it will be seen, the verdict will apply to an increasing extent he has indicated.
The work to be done is to take into account definitively that there is more than one employee in the payrolls for the period 2001-2005 given from the defendant workplace in the file and to conclude that all the evidence should be evaluated together by applying to the statements of other payroll witnesses.
In that case, the plaintiff’s appeals against these aspects should be accepted and the judgment should be overturned.
CONCLUSION:
If the judgment is OVERTURNED for the reasons explained above, it was decided unanimously on 06.04.2010 to return the appeal fee to the plaintiff.”