Law Office
Case Number: 2017/13142
Decision Number: 2020/69
“Text of Justice”
COURT: LABOR COURT
An appeal was filed against the decision rendered in the case between the parties, and it was determined that the appeal was filed within the prescribed time limit. After hearing the report prepared by the Investigating Judge for the case file, the file was examined, the matter was discussed, and an assessment was made:
JUDGMENT
A) Summary of the Plaintiff’s Claim:
The plaintiff’s lawyer stated that his client worked as a cleaning staff member and retired, that his salary was paid above the minimum wage, that the plaintiff worked at the hospital 6 days a week between 07:00 – 16:00 / 18:00 and was entitled to overtime pay, that he also worked on public holidays, that he never used his annual leave, stated that multiple consecutive fixed-term employment contracts with the plaintiff had been converted into indefinite-term contracts from the outset and that the plaintiff was entitled to severance pay;
Without prejudice to overtime rights, 1,000,000 TL in severance pay, the highest bank interest rate applicable to deposits as of 01/29/2015, the date of dismissal, 100.00 TL annual paid leave, statutory interest, and 100.00 TL overtime pay, together with the highest bank interest rate, 100.00 TL official holiday and general holiday fees, and attorney’s fees for litigation costs to be collected from the defendants.
B) Summary of the Defendant’s Response:
The defendant, the lawyer for the Turkish Public Hospitals Institution, stated that the claim for indefinite receivables should not be filed and that the case should be dismissed on the grounds that there is no legal interest, that the case has been filed, that the wage claims from 5 years prior to the date are time-barred, The defendant stated that the plaintiff worked as a cleaning worker in various companies between January 1, 2005, and January 29, 2015.
The plaintiff stated that he worked at the Education and Research Hospital, that his employment contract was terminated on January 29, 2015, with a retirement request, that the costs related to severance pay and seniority compensation were paid to the company under the contract, and that the costs, including general expenses, were not the responsibility of the principal employer, but rather the responsibility of the subcontractors, and therefore the management had no liability. He argued that the case was unfounded and requested that it be dismissed.
The defendant … İnş. LLC. and its assistant; argued that subcontracting companies were not liable for the plaintiff’s claims under Law No. 6552 and the relevant regulations, objected vehemently, stated that the plaintiff voluntarily left the job without a valid reason, that severance pay was not paid, that no documents regarding his retirement were submitted to the company, that the plaintiff submitted a petition stating that he wanted to leave his job only because his retirement date had passed, that the company’s responsibility was limited to the period the plaintiff worked for the company, that the claim that he worked 6 days a week was not true, that his weekly working hours did not exceed 45 hours, all of the plaintiff’s rights were paid in full, and he did not work continuously on national holidays and official holidays.
The lawsuit was filed against hostilities, and it was requested that it be dismissed on its merits, arguing that there was no employment, compensation was paid, the plaintiff worked at the company for one year, used his annual leave entitlement, and his claims were time-barred.
C) Summary of the Local Court’s Decision:
The court decided to partially accept the lawsuit.
D) Appeal:
The defendants separately appealed the decision.
E) Grounds:
1- Based on the documents in the file, the evidence gathered, and the legal grounds on which the decision is based, all objections of the defendant company and the defendant institution’s lawyer outside the scope of the following paragraph are invalid.
2- The fundamental dispute between the parties is the determination of the legal relationship created by the change of subcontractors and its effects on the employee’s working rights.
Article 2 of Labor Law No. 4857 defines employers as real or legal persons or institutions and organizations that employ workers on the basis of an employment contract. In this case, for a principal-subcontractor relationship to exist, there must first be an employer who owns a workplace where goods or services are produced and a second employer who works at the same workplace. It is not necessary for the subcontractor to own a workplace at the outset. The subcontractor may have acquired the title of employer for the first time due to the work received from the principal employer and the workplace where this work is performed.
First, the question of whether it is possible to speak of an independent workplace for the subcontractor must be resolved; because auxiliary work related to the production of goods or services carried out at the principal employer’s workplace is left to the subcontractor. This is because, in order to determine whether the principal employer or subcontractor change constitutes a transfer of workplace, the concept of workplace must be clarified at this point.
From the perspective of the Trade Unions Law No. 2821, the main issue is as follows:
Although it should be noted that the sector to which the work belongs also applies to auxiliary work, in light of the clear provision of Article 3 of Law No. 4857, cases where the work is subcontracted should be treated separately. In fact, although Article 2/III of Law No. 4857 contains the basic rule that “the workplace, places attached to the workplace, annexes, and vehicles constitute a whole within the scope of the work organization,” which coincides with the Trade Unions Law, the principal employer-subcontractor relationship is regulated in a sense in the following paragraphs.
A separate situation is envisaged in cases where the subcontractor assigns the auxiliary work to a subcontractor. Subsequently, the issue was clearly resolved by adding the rule “The subcontractor is obliged to report its own workplace, established for the production of goods or services in this capacity, in accordance with the provisions of the first paragraph” to Article 3 of the same law, establishing that the subcontractor’s workplace is independent of the main employer’s workplace. This solution is also appropriate for the nature of the subcontractor institution. The Civil General Assembly of the High Court of Appeals had already concluded that the subcontractor’s workplace was independent of the main employer’s workplace even before Law No. 4857 came into force (Court of Appeals HGK. 6.6.2001 2001/9-711 E, 2001/820 K).
The transfer of the entire workplace
or part thereof to another person based on a legal transaction can be defined as a workplace transfer. Article 6 of Law No. 4857 stipulates that if the entire workplace or part thereof is transferred to another person based on a legal transaction, the existing employment contracts shall be transferred to the transferee. According to this explanation, the transfer of the workplace where the subcontractor carries out its activities within the scope of the work it receives from the principal employer to another employer constitutes a workplace transfer within the scope of Article 6 of Labor Law No. 4857. The established case law of our Chamber is also in this direction (9th Civil Chamber, dated 18.9.2008, 2006/26306 E, 2008/23980 K.).
Furthermore, it is possible to conclude a contract explicitly providing for the transfer of the workplace between the subcontractor whose contract has expired and the new subcontractor that has won the new tender. If the workers who will continue to work for the new subcontractor despite the change in subcontractor are identified, it is undisputed that their employment contracts will be terminated by the transferee employer. However, it must be accepted that the employment contracts of workers who are not among those who will work for the new subcontractor and who have not been notified by the subcontractor whose contract has expired that they will be employed at another workplace will be terminated by the transferring subcontractor.
In the example where the subcontractor leaves the workplace by showing another workplace based on the reason for termination for all its workers at the end of the working period agreed with the main employer or before the end of the period, and then the main employer assigns the work to another subcontractor, there is no legal relationship between the subcontractors. Since the legal relationship is between the subcontractors and the principal employer, the situation described cannot be considered a transfer of the workplace between subcontractors.
The most common change among subcontractors is when a subcontractor whose contract has expired leaves the workplace and the workers continue to work for the new subcontractor. It is important to determine whether this action constitutes a transfer of the workplace and its legal consequences. What should happen in the event of a subcontractor change is that the subcontractor whose contract has expired takes its workers with it to another workplace when it leaves the workplace or when their employment contracts are terminated.
Conversely, if subcontracted workers continue to work for the new subcontractor in the same manner despite leaving the subcontractor’s workplace, a workplace transfer between subcontractors must be accepted in accordance with Article 6 of the Labor Law. In this case, the same article states that the new subcontractor will take over the ongoing service contracts.
If we do not accept the change of subcontractors as a workplace transfer without any legal process between them, it may lead to a loss of rights; because each subcontractor will be responsible for the workers’ rights for their own period, and according to the law, the main employer’s responsibility cannot exceed the subcontractor’s responsibility.
For example, subcontractors who periodically employ workers at the workplace for 11 months and 29 days will not be obliged to pay severance pay and leave pay, but the principal employer’s responsibility for these employee rights will come to the fore. However, it cannot be considered that the principal employer’s responsibility exceeds that of the subcontractor or subcontractors.
The provision of Article 14/2 of Law No. 1475 can be considered a broader regulation that also includes the relocation of the workplace as specified in Article 6 of Law No. 4857. In fact, after mentioning the relocation or transfer of the workplace in the article, it should state “…or relocation from one employer to another or to another place by any means…”