Cases filed by workers who work without insurance coverage to have the periods they worked without insurance included in their insurance coverage are called service determination cases.
According to Article 86/7 of the Social Insurance and General Health Insurance Law No. 5510; those who cannot be identified by the institution they work for through the monthly premium and service certificate or the summary tax and premium service declaration provided by their employers, or those who are not insured, may apply to the labor court within five years from the end of their service to prove their claims for the previous year, and their total monthly earnings for the number of premium payment days determined by the court decision will be taken into account.
In service determination cases, the plaintiff employee is responsible for proving that they worked at the workplace in question in previous years. The plaintiff can prove this fact with any kind of evidence. One of the most important pieces of evidence in service determination cases is witness testimony.
Although anyone who can prove the existence of the work can be presented as a witness, the Court of Cassation case law requires that payroll witnesses (other employees reported to the Social Security Institution during the same period) who worked at the same workplace during the period claimed to have been worked as witnesses, or persons working in workplaces adjacent to the workplace during the period in which the work is claimed to have been performed, be heard.
In cases of service determination, the subject matter of the lawsuit is that the plaintiff worked in the same or a similar job as other employers and their salaried employees in the neighboring region during the period of employment. It is necessary for the court to have sufficient information and experience to issue a conviction ruling regarding these employers and their salaried employees.
An example of a Supreme Court decision on this matter:
Supreme Court of Turkey, 21st Civil Chamber. 2009/4317K. 2010/3846K.T. 06.04.2010
“The plaintiff requested that the defendants definitively determine the work performed at the employer’s workplace between October 1, 2003, and August 14, 2006, which was not reported to the Institution.
As stated in the court decision, the request was rejected.
Upon the plaintiff’s representative appealing the decision, and upon finding the appeal request to be valid, and after reviewing the documents in the file together with the report prepared by the Investigating Judge, the necessity of conducting the work was evaluated, and the following decision was made.
Decision
1- The plaintiff’s appeals outside the scope of the following paragraph are rejected based on the evidence obtained from the items in the file and in accordance with the legal reasons on which the judgment is based.
2- The case concerns the plaintiff’s request for the determination of his employment between October 1, 2003, and February 3, 2005, which was not reported to the Institution, based on his claim that he worked continuously at the workplace between October 1, 2003, and August 14, 2006.
The plaintiff’s work at the workplace, employment notifications, monthly and quarterly payrolls were partially reported to the Institution and premiums were paid accordingly. On the other hand, the employment notification and payrolls are evidence that the plaintiff’s work at the workplace was interrupted.
It is certain that the contrary of this presumption must be proven with equivalent documents. In such cases, convincing and sufficient evidence that can establish the fact of employment must be sought, and in such cases based on public order, the judge must, as part of their duty, directly expand the investigation to determine whether the insurance conditions have been met. In this regard, the Supreme Court of Appeals General Assembly of Civil Law, dated 16.09.1999 and numbered 1999/21-510-527, dated 30.06.1999 and numbered 1999/21-549-555, February 5, 2003, No. 2003/21-35-64, October 15, 2003, No. 2003/21-634-572, dated November 3, 2004, numbered 2004/21-480-579, dated November 10, 2004, numbered 2004/21-538, dated October 1, 2004, numbered 2004/21-629.
The defendant stated that he was absent from work for 306 days in 2005 and 210 days in 2006, which he notified on 15.08.2006. As can be seen, the plaintiff’s brother, who was presented as a witness, is the neighbor of the plaintiff’s roommate, that the plaintiff’s brother and the witness Morgul were not on the payroll, that the payroll witness did not provide information about the plaintiff’s employment history, and that the payroll witness did not provide information about the plaintiff’s work history.
In 2005, witness Bordo Safiya stated that the plaintiff had entered, indicating that the witness statements contradicted each other, and stated that the ruling would be enforced to an increasing extent, as will be seen.
The task at hand is to take into account the fact that there was more than one employee on the payrolls for the 2001-2005 period provided by the defendant’s workplace in the file and to reach a decision by evaluating all the evidence together, referring to the statements of the other payroll witnesses.
Therefore, the plaintiff’s appeals regarding these aspects must be accepted, and the judgment must be overturned.
CONCLUSION:
For the reasons explained above, it was unanimously decided on 06.04.2010 that if the judgment is REVERSED, the appeal fee shall be refunded to the plaintiff.