TC
YÜCE
LAW FIRM
Ref. No. 2008/9842
Case No. 2009/7830
Date: June 4, 2009
DETERMINATION OF EMPLOYMENT (In Cases Where an Employment Declaration, Monthly Social Security Contribution Declaration, or Payroll Document for the Period Has Been Submitted to the Institution, or Where the Institution Has Determined the Fact of Employment with an Actually or Registered Insured Person, the Period of Reduction of Rights Cannot Be Invoked)
(Determination of Employment – Failure to Mention the Fact of Employment When an Employment Declaration, Monthly Social Security Contribution Declaration, or Payroll Document for the Period Has Been Submitted to the Institution, or When the Institution Has Determined the Fact of Employment of an Actual or Registered Insured Person)
FACT OF EMPLOYMENT (Determination of Employment – If an Employment Declaration, Monthly Social Security Contribution Declaration, or any Payroll Document for the Period has been submitted to the Institution, or if the Institution has determined the existence of actual or registered insured employment, the reduction period cannot be invoked) Rights)
DOCUMENTS PROVIDED TO THE INSTITUTION (Even if one of the documents has been provided to the Institution, or even if the Institution has determined that the individual is an actual or registered insured employee, no provision regarding a reduction period for benefits may be applied)
506/Art. 79/1
SUMMARY:
The plaintiff requested a decision ordering the collection of wages by establishing that the defendant worked for the employer. As clearly stated in Article 79/1 of the Law regarding the documents the employer must submit to the Institution concerning insured persons, this matter is left to the regulation. In the aforementioned Social Security Procedures Regulation, the documents the employer must submit to the Institution are listed as the employment declaration, monthly social security contribution declaration, periodic payroll, etc. If any of these documents are submitted to the Institution or if the Institution determines the fact of insured employment either through actual verification or by record, the reduction period shall not apply.
CASE:
The plaintiff requested a ruling ordering the defendant to pay the wages owed, based on the determination that the defendant worked for the employer between December 12, 1998, and May 31, 2004.
The court decided to partially grant the request as stated in the notice.
After the plaintiff’s attorney filed an appeal, it was determined that the appeal was filed within the prescribed time limit. Following a review of the documents in the file, along with the report prepared by Supreme Audit Institution President Sultan Namazcı, the necessity of the work was assessed, and the following decision was rendered:
DECISION: The case concerns the plaintiff’s claim regarding the determination of unreported periods during the period from December 1, 1998, to May 31, 2004, during which the plaintiff worked continuously under an employment contract at the defendant’s workplace, and the defendant employer’s claim for labor-related claims.
The Court decided to partially grant the claim regarding labor-related entitlements and to exclude the case pertaining to the period prior to the issuance of the employment notification dated April 21, 2000, from the statute of limitations.
.
The dispute centers on whether the statute of limitations has expired in this case.
Unless the exceptions specified in Article 2 of the Social Security Law No. 506 apply, employees are considered self-insured individuals if the conditions set forth in that article are met.
The principle that the insurance rights and obligations of insured individuals and employers commence as of the date the insured individual is hired enables the insured individual to be registered.
Article 79/10 of the Social Security Law No. 506 provides for the filing of a lawsuit regarding the identification of work performed without notification. Under this article, if the documents specified in the regulation are not submitted to the Institution or if the work is not identified by the Institution, and if the lawsuit is filed within the statute of limitations, a list of individuals who may be considered insured under Law No. 506 may be compiled.
An insured person may request the determination of unreported work within five years from the end of the year in which the service was completed and the compensation period began. A grace period is provided for unreported work.
.
As clearly stated in Article 79/1 of the Law regarding the documents the employer must submit to the Institution concerning insured persons, this matter is left to the regulations. In the aforementioned Social Security Procedures Regulation, the documents the employer must submit to the Institution are listed as the employment declaration, monthly social security contribution declaration, periodic payroll, etc. If any of these documents are submitted to the Institution or if the Institution determines the existence of insured employment either through actual verification or by record, the reduction period will not apply.
In the event of an interruption in employment, the existence of the relevant conditions for each employment cycle occurring before and after the interruption will be determined by taking into account the matters outlined above.
Looking at the specific case, it cannot be said that part of the defendant employer’s embezzlement was reported to and recorded by the Institution; according to the case file, the pay stubs, and witness statements, it was not reported to the Institution; the fact of continuous employment during the alleged period has been proven, and the period for dismissal has expired. These issues were also addressed in the decisions of the Supreme Court General Assembly dated February 26, 2003, No. 2003/21-44-98, and dated June 23, 2004, No. 2004/21-369-371.
.
The matter at hand is that a significant portion of the work performed by the plaintiff between December 1, 1998, and May 31, 2000, falls within the period from April 21, 2000, to May 31, 2000, covered by the defendant; consequently, the defendant’s service dates have been fully assessed as of this period. Th e recalculation was not performed as of April 21, 2000. Taking into account the legal rights effective as of the notification date of December 1, 1998, the calculation of the claims determined by the plaintiff’s expert through a prompt decision and the resolution of this matter are required.
The court’s decision to dismiss the case in writing, rather than partially accepting it based on insufficient investigation and erroneous evaluation, is contrary to procedure and law and constitutes a violation, as it fails to consider these factual and legal realities.
Under these circumstances, the plaintiff’s objections regarding these matters must be accepted, and the judgment must be reversed.
CONCLUSION:
On June 4, 2009, by unanimous vote, it was decided that the judgment shall be SET ASIDE for the reasons explained above; that the plaintiff’s other appeals shall be reviewed based on the grounds of the violation; that these are not included for the time being; and that the appeal fee shall be refunded to the plaintiff upon request.