Turkish Supreme Court of Appeals, 22nd Civil Chamber Case No.: 2018/6283
Decision No.: 2018/10735
Date of Decision: 04.05.2018
EMPLOYEE CLAIMS CASE – SUBJECT OF THE CASE: COMPENSATION AND
THE TECHNICAL AND EXPERTISE REQUIRED TO CALCULATE THE CLAIMS
– ADVANCE PAYMENT FOR THE SUBSTITUTION OF EVIDENCE – NO PROOF REQUIRED,
ERROR RELATED TO THE REJECTION OF THE CLAIM –
VIOLATION OF THE RULING
SUMMARY: In a specific case, the expert witness fee requested to be retained by the court
was allocated to the case in dispute because it was not directly related to the proof of the relevant claim and the period given was not appropriate and definitive. Furthermore, in matters where the expert witness cannot be heard,
it is possible to resolve the case with the general and legal knowledge required by the profession of judge. The calculation of the compensation and receivables in question is also technical and does not require expertise. Considering the entire file, the claims regarding the receivables in question, the plaintiff’s defendant, the statements of the plaintiff’s witnesses, and the company’s past work, the claim that part of the receivables in question has been proven is incorrect.
Therefore, the decision to dismiss the case is erroneous and must be overturned. (1475 PK m. 14) (4857 p. K. m. 17, 41, 46, 47, 57) (6100 PK m. 324) (1086 PK m. 427) Case: The Court of Cassation overturned the decision rendered in the lawsuit filed between the parties in favor of the law. Upon the request of the Chief Public Prosecutor’s Office, the case was examined and discussed after hearing the report prepared by the investigating judge M. Hacıoğlu, and it was deemed necessary:
Decision:
Summary of the Plaintiff’s Claim: The plaintiff’s attorney states that the employer dismissed the plaintiff’s case between May 1, 1999, and May 31, 2011. A. and the defendant stated that they worked as a site manager and machine operator before the acquiring company, that the contract was terminated by the defendant employer without just cause, and requested the collection of their receivables from the defendant, including severance pay, notice pay, weekend work, overtime, annual leave, and public holiday compensation. Summary of the Defendant’s Response: The defendant did not respond to the lawsuit. Summary of the Court’s Decision: The court decided to dismiss the case. Appeal: Karan appealed to the Supreme Court Prosecutor’s Office on the grounds that the decision was contrary to the law in favor of the Public Prosecutor.
Reason:
Article 324 of Law No. 6100 regulates the “advance payment for evidence,” according to which
each party shall pay the advance determined by the court for the evidence they wish to substitute, and it is mandatory to deposit the advance within the given period
. If the parties jointly request the substitution of the same evidence, the requested expense shall be paid as an advance payment in equal shares (f,1). one of the parties fails to fulfill the advance payment obligation, the other party may deposit this advance payment. Otherwise, the party shall be deemed to have waived the substitution of the requested evidence (f.2).
First, it should be noted that in order to claim that the case could not be proven because the evidence was not submitted within the period for which the advance payment for the substitution of evidence was deposited, it must first be established that the evidence was not submitted within the period for which the advance payment for the substitution of evidence was deposited.
It should first be noted that, in order to claim that the case cannot be proven because the evidence was not submitted within the period for which the advance payment for the substitution of evidence was made, it must first be established that this evidence is relevant to the matter in dispute.
In this case, the plaintiff
is liable for not paying the costs, as it is accepted that they have waived them, and it may also be possible that the case cannot be proven. In other words, without this evidence,
it should not be possible to prove the case; when considered a party,
they must have waived the evidence because they did not pay it in advance, and this case must remain completely unproven in order for a decision to be made in this direction. In this regard, as is well known,
in practice, it has been stated that if the expert report obtained by the judge is not directly related to the evidence, solely due to the heavy workload of the case,
it is not correct to dismiss the case on the grounds that it cannot be proven, as it has been stated that the expert fee has not been paid.
According to the file contents; at the hearing on 14.04.2016, the plaintiff stated to his representative, “…with the transfer of our file to the Bursa Labor Court, the file has been completely lost, and in exchange for obtaining the maximum number of reports, which is more than the number of parties,
an expert witness specializing in labor law, with the authority to determine the expert witness’s labor and overtime fees as 300.00 TL, and that the remaining 150.00 TL of the expert witness fee was requested to be paid by the plaintiff’s attorney to our court cashier within a specific period of one week from the date of delivery, and that if the specified expert fee is not deposited by the plaintiff into our court’s cashier’s office within a specified period, the expert examination shall be deemed to have waived the right to rely on evidence, and the file shall be deemed to be based on the existing evidence.
The court has ruled that the plaintiff’s attorney present at the hearing will be evaluated based on the circumstances (has been warned)…”
Despite the plaintiff depositing 150.00 TL on May 4, 2016,
the court, at the hearing on May 17, 2016, issued an interim decision to remove subparagraph b of item 2 of the final session regarding the removal of the expert witness expenses
the removal of subparagraph (b) of Article 2 of the final session, and despite the fact that the amount was not paid within the specified period due to the case not being proven,
it was decided to dismiss the case.
In the present case, the expert witness fee requested to be retained by the court is as explained above;
since the subject matter of the dispute is not directly related to the proof of the claim in the case, the period given is not
procedurally appropriate and final.
Furthermore, it is not possible to hear an expert witness on matters that can be decided by the court, given the general and legal knowledge required by the profession of judge.
Compensation and claims Compensation and claims The entire scope of the case, the subject matter of the case,
the plaintiff’s witness statements will be considered, the plaintiff’s claims will be heard with the understanding that
the claims for part of the receivables subject to the case at the defendant company will also be evaluated and proven,
and the decision to dismiss the case due to failure to prove the case was found to be erroneous and must be reversed.
Result:
Pursuant to Article 3 of the Code of Civil Procedure No. 6100, as applied by the Supreme Court Prosecutor’s Office,
pursuant to Article 427/6 of the Code of Civil Procedure No. 1086,
a request for appeal in the interest of the law has been filed,
which may be DISTORTED in a manner that will not affect the outcome of the judgment, and due to the necessity of the file,
it has been transferred to the Chief Prosecutor’s Office of the Court of Cassation. Our General Directorate unanimously adopted this decision on May 4, 2018.