TC
HIGH
GENERAL ASSEMBLY
NUMBER: 2018/7-179
DECISION NO: 2018/683
DATE OF DECISION: 4.4.2018
LABOR CLAIMS LAW, WHERE THERE IS NO LEGAL BASIS FOR DISREGARDING THE PREVIOUS JOB AS IF THE PLAINTIFF HAD JUST STARTED A NEW JOB, OR FOR DISREGARDING THE PREVIOUS JOB AS IF THE PLAINTIFF HAD JUST STARTED A NEW JOB, OR DISREGARDING THE EMPLOYEE’S PREVIOUS JOB. IT IS NOT POSSIBLE TO EVALUATE THE EMPLOYEE’S FAILURE TO BRING A LAWSUIT AGAINST THE EMPLOYER WHILE WORKING, AS THE EMPLOYEE IS ECONOMICALLY DEPENDENT ON THE EMPLOYER.
4857/m.5,29/7,53/3,60
SUMMARY: The lawsuit concerns the collection of labor claims. Although the nature of the previous job has not changed, it is clear that ignoring this job would violate the principle of equality, as the plaintiff was included in the workforce and continuously employed in similar jobs throughout the year. Furthermore, by creating a qualitative difference between the work performed by the employee before being hired for the next or previous job and the work performed without personnel, it is not possible to evaluate the legal basis of the transaction due to the plaintiff finding a new job there. On the other hand, the fact that an employee who is economically dependent on an employer has not filed a lawsuit against the employer during the period of employment cannot be evaluated. In light of all these findings and decisions, which are of a precedent nature, the degree and The determination of the level by including it in the working period, the rejection of claims if there is a difference, and the decision to dismiss the case with a written justification were found to be erroneous.
PROCEDURE: Following the trial between the parties regarding a “work claim,” the Samsun 2nd Labor Court issued its decision dated July 4, 2014, numbered 2014/55, dismissing the case. -2014/449 K. No. 7, issued by the Court of Appeals upon the plaintiff’s attorney’s request for an appeal review.
“… The plaintiff’s attorney requested that his client be transferred to permanent staff in 2001 while working as a temporary worker and continue working until retirement, but that his placement was incorrect because the periods he worked until the date of his placement were not taken into account, and requested that his rank and grade be determined by taking into account the period he worked as a temporary worker and that certain differences arising from this incorrect placement be identified.
The defendant’s representative argued that the plaintiff’s claims were time-barred, that the plaintiff’s employment had been corrected in accordance with the Collective Bargaining Agreement and October Minutes for the relevant period, and that the plaintiff could not benefit from the provisions of the Collective Bargaining Agreement after retirement, requesting that the case be dismissed.
The court ruled that, given the plaintiff’s long silence implying the passage of the personnel working conditions, after working in the manner described above, the new and past adjustment period, subject to demand conditions incompatible with the principles of paid labor law, the collective labor agreement concluded in 2013, due to the plaintiff’s retirement, the initial arrangement, he could benefit from the said arrangement, Pursuant to the protocol dated October 26, 2000, signed between the employer and the Turkish Labor Union, it was explicitly and specifically stated that temporary workers in the plaintiff’s position would be converted to permanent worker status based on their current wages. Therefore, the court ruled to dismiss the case on the grounds that the plaintiff’s past claims were unfounded.
Work that is performed only at certain times of the year or throughout the year, but which intensifies during certain periods of the year, can be defined as seasonal work. These periods may be long or short, depending on the nature of the work. Work that is not suitable for employing the same number of workers at all times and where workers are employed intensively for specific periods each year, depending on the nature of the activity carried out at the workplace, but where the employment contracts provide for a break until the beginning of the following year’s interim period during the rest of the year, is considered seasonal work.
In accordance with the provisions of Article 11 of the Labor Law No. 4857 regarding seasonal employment contracts, they may be established for a fixed term or an indefinite term.
The court ruled that, considering the plaintiff’s long period of silence implying a transition in personnel working conditions after working as described above, the new and past adaptation period subject to demand conditions incompatible with the principles of paid labor law, the collective labor agreement signed in 2013, and the plaintiff’s retirement, the plaintiff was eligible to benefit from the initial arrangement. The protocol signed between the employer and the Turkish Labor Union on October 26, 2000, clearly and specifically stated that temporary workers in the plaintiff’s position would be converted to permanent worker status based on their current wages. Therefore, the court dismissed the case on the grounds that the plaintiff’s past claims were unfounded.
Work performed at certain times of the year or throughout the year but concentrated in specific periods of the year can be defined as seasonal work. These periods may be long or short depending on the nature of the work. Depending on the nature of the activity carried out at the workplace, work that is not suitable for employing the same number of workers at all times and where workers are intensively employed during certain periods each year, but where employment contracts provide for a break during the rest of the year until the start of the next year’s interim period, is considered seasonal work.
Additionally, if reference is made to the protocol dated October 26, 2000, signed between the defendant administration and the union of which the defendant is a member, it should be noted that the Collective Labor Agreement can only be made in favor of the employee with the rights granted to employees under the Labor Law, and otherwise, the regulation shall not apply. Therefore, it is not possible to validate a protocol that results in consequences unfavorable to the employee.
Again, although it is subject to the Law of Obligations in terms of its general principles, the fundamental reason for Labor Law emerging as a separate (special) branch of law is to regulate the legal relationships between the parties, which are based on an unequal structure. Therefore, it cannot be assumed that an employee who is dependent on the employer and whose economic future depends on the employer tacitly accepts the existing practice after being hired. Furthermore, the freedom to seek rights is constitutionally guaranteed, and the time period for exercising this right cannot be evaluated to the detriment of the right holder.
The decisions rendered by the Mersin precedent courts, according to the nature of our chamber’s work, are numbered 2014/131…140, 306…313, 386, 496…500, 757…761, and the acceptance decisions rendered by the Şanlıurfa precedent courts… Case No. 6077, Decision No. 2013/5838, and the decisions of the Antalya courts of first instance, which are similar in nature to the case before our chamber, have been finalized by the court with decisions No. 2014/8391 and 8399, accepting the decisions of the Artvin Civil (Labor) Court… With the rulings numbered 2014/10516 and 10530, it has been finalized in our court.
In light of all these precedent-setting findings and decisions, it is erroneous to determine the grade and level of the plaintiff’s job prior to his transfer to the permanent staff by including it in the length of service, to exclude any differences in remuneration, and to decide to dismiss the case with written grounds…”
The court, after retrial, upheld the previous decision, overturned the grounds, and returned the file to its place.
Upon review by the General Assembly of the Court of Appeals, it was understood that an objection had been filed against the decision to uphold the previous ruling, and after reading the documents in the file, the following was discussed:
DECISION: The case concerns a claim for the collection of labor claims.
The plaintiff’s attorney claimed that the period during which his client worked as a seasonal worker was not taken into account during the hiring process and that his rank and grade were incorrectly determined. He requested and sued for the collection of a certain amount of labor claims, provided that his rank and grade were determined and his additional rights were reserved.
The defendant’s attorney argued for the dismissal of the case.
During the trial, due to the termination of the legal personality of the Samsun Provincial Special Administration under Law No. 6360, the case was followed by the Deputy Mayor of Samsun Metropolitan Municipality, to whom the file was transferred by the Transfer, Liquidation, and Distribution Commission.
In its decisions dated October 7 and 22, the Court of Cassation ruled to uphold the decision, adding to the previous reasoning of the Local Court on this matter. Despite the disagreement among the Chambers of Law, the decision to uphold was made on the grounds that this dispute had not yet been resolved, and it was also taken into account that no solution had been reached at the General Assembly meeting dated December 20.
The decision to resist was appealed by the plaintiff’s attorney.
In a concrete case, the claimant’s work spent as a seasonal worker before moving to permanent staff may be taken into account in determining the degree and level of permanent staff by including it in the working period, and whether the difference will be receivable according to the conclusion to be reached here.
In a concrete case, the claimant’s work spent as a seasonal worker before moving to permanent staff may be taken into account in determining the degree and level of permanent staff by including it in the working period, and whether the difference will be receivable according to the conclusion to be reached here.
In order to resolve the dispute, the concept of seasonal work must first be explained. As it is known, although the working conditions of seasonal workers are regulated by labor laws in our labor law legislation, a complete definition of seasonal work has not been made, and it has not been clearly stated which jobs are seasonal jobs.As it is known, although the working conditions of seasonal workers are regulated by labor laws in our labor law legislation, a compls it is known, although the working conditions of seasonal workers are regulated by labor laws in our labor law legislation, a complete definition of seasonal work has not been made, and it has not been clearly stated which jobs are seasonal jobs.
The provisions regarding seasonal work are 29/7 of the Labor Law No. 4857. article 53/3 of the same Law as; 60. is the substance. 12. 12 of the Regulation issued on the basis of the article. it is included in the article and Article 4/ f of the Law No. 394 on Week Holidays. In these provisions, there is no definition of seasonal work, but seasonal employees do not have annual leave rights, but they can be included in the scope of the collective bargaining agreement by defining workplaces where work is performed at any time of the year, not performed or reduced at other times.
In these provisions, there is no definition of seasonal work, but seasonal employees do not have annual leave rights, but they can be included in the scope of the collective bargaining agreement by defining workplaces where work is performed at any time of the year, not performed or reduced at other times. According to the regulations described above, the work done in workplaces where work is concentrated at a certain time of the year can be defined as seasonal work.
As a matter of fact, in Article 2 / B of the Labor Law No. 3008, “a workplace that fully or excessively operates during any period of the year, and completely stops its activity or reduces its activity during another period” is considered a seasonal workplace.As a matter of fact, in Article 2 / B of the Labor Law No. 3008, “a workplace that fully or excessively operates during any period of the year, and completely stops its activity or reduces its activity during another period” is considered a seasonal workplace. Seasonal work is also defined in teaching as work in which the activity intensifies at certain periods of the year, decreases or stops completely at other periods, and this situation is repeated at certain periods of the year.
The said periods may be long or short depending on the nature of the work.he said periods may be long or short depending on the nature of the work. Jobs that are not always suitable for employing the same number of workers and where workers are intensively employed for certain periods of time every year depending on the nature of the activity carried out at the workplace, but at another time of the year, requiring a break in employment contracts until the beginning of the Decemberration of the following year, can be considered seasonal jobs.
Decemberration is not always suitable for the same number of employees and requires a break in employment contracts until the beginning of the interim period of the following year. In fact, the Seasonal Work General Assembly Law dated 13.11.2013 and numbered 2013/22–1170 E.In fact, the Seasonal Work General Assembly Law n fact, the Seasonal Work General Assembly Law dan fact, the Seasonal Work General Assembly Law dated 13.11.2013 and numbered 2013/22-1170 E.; Date: 07.03.2012 and 2011/9-755 E.-2012/117 K. and dated 30.11.2011 and 2011/9-596 E.-2011/725K. in its numbered decisions, it isIn fact, the Seasonal Work General Assembly Law dated 13.11.2013 and numbered 2013/22-1170 E.; Date: 07.03.2012 and 2011/9-755 E.-2012/117 K. and dated 30.11.2011 and 2011/9-596 E.-2011/725K. in its numbered decisions, it is also defined as works that occur at certain periods of the year according to the nature and structure of the work or are worked in accordance with increasing activities during these periods.
It should be noted that whether the job is a seasonal job or not, the need to be strictly examined according to the nature of the job and the workplace should also not be ignored. Dec. On the other hand, another issue that needs to be examined is the “equal transaction debt”.On the other hand, another issue that needs to be examined is the “equal transaction debt”. The principle of equal treatment applies in all areas of law and is a debt recognized by modern labor law. It refers to the employer’s obligation to treat employees working at the workplace equally in terms of labor law, to apply equal working con the other hand, another issue that needs to be examined is the “equal transaction debt”.
The principle of equal treatment applies in all areas of law and is a debt recognized by modern labor law. It refers to the employer’s obligation to treat employees working at the workplace equally in terms of labor law, to apply equal working conditions to employees working in jobs of equal value and is usually based on fairness (Çelik, N.: Business Law Courses, Istanbul 2009, 22. Basi, p.:177). The principle of equality is defined in Article 10 of the Constitution of the Republic of Turkey numbered 2709. it is included in the article and is arranged in general terms in the article.he principle of equality is defined in Article 10 of the Constitution of the Republic of Turkey numbered 2709. it is included in the article and is arranged in general terms in the article. According to the first paragraph of the articleThe principle of equality is defined in Article 10 of the Constitution of the Republic of Turkey numbered 2709. it is included in the article and is arranged in general terms in the article.
According to the first paragraph of the article principle of equality is defined in Article 10 of the Constitution of the Republic of Turkey numbered 2709. it is included in the article and is arranged in general terms in the article. According to the first paragraph of the article in question, “Everyone is equal before the law without discrimination on the grounds of language, color, gender, political opinion, philosophical belief, religion, sect and similar reasons.” In the same way, the Law No. 5170 dated 07.05.2004 and the 10th Amendment of the Constitution. in the second paragraph added to the article, “Women and men have equal rights. The state is obliged to ensure that this equality is realized.” the judgment is contained.
This Constitutional principle is based on Article 5 of the Labor Law No. 4857 on Labor Law. it is located in the article. 5 of the Law No. 4857 entitled “The Principle of Equality”.his Constitutional principle is based on Article 5 of the Labor Law No. 4857 on Labor Law. it is located in the article. 5 of the Law No. 4857 entitled “The Principle of Equality”. in the aThis Constitutional principle is based on Article 5 of the Labor Law No. 4857 on Labor Law. it is located in the article. 5 of the Law No. 4857 entitled “The Principle of Equality”. in the article; “No distinction can be made in commercial relations on the grounds of language, race, gender, political opinion, philosophical belief, religion and sect and similar reasons.
The employer may not take different actions against a full-time employee, a part-time employee, an indefinite-term employee, or a fixed-term employee unless there is a justified reason. Unless the employer requires biological or qualitative reasons for the performance of the work, the employee; establishment, creation, implementation and termination of the employment contract, She cannot perform different surgeries directly or indirectly due to her gender or pregnancy.less the employer requires biological or qualitative reasons for the performance of the work, the employee; establishment, creation, implementation and termination of the employment contract, She cannot perform different surgeries directly or indirectly due to her gender or pregnancy. A lower wage cannot be agreed due to gender for a job of the same or equal value.
The application of special protective provisions due to the gender of the employee does not justify the application of lower wages. In case of violation of the above paragraphs during or after the employment relationship, the employee may also demand other rights that he has been deprived of, such as an appropriate compensation equal to his wages for up to four months.
Article 31 of the Trade Union Law No.se of violation of the above paragraphs during or after the employment relationship, the employee may also demand other rights that he has been deprived of, such as an appropriate compensation equal to hisn case of violation of the above paragraphs during or after the employment relationship, the employee may also demand other rights that he has been deprived of, such as an appropriate compensation equal to his wages for up to four months. Article 31 of the Trade Union Law No. 2821 The provisions of the article are reserved. Without prejudice to the provisions of the article, the employee is obliged to prove that the employer has acted contrary to the provisions of the above paragraph.
However, when the employee presents a situation that strongly indicates the possibility of the existence of a violation, the employer is obliged to prove that such a violation does not exist.” the arrangement has been added. As a rule, the obligation to perform equal transactions is a debt that arises after the establishment of the employment relationship and prevents the employer from engaging in arbitrary practices (Yıldız, Gaye B.: The Obligation of the Employer to Take Equal Action, Ankara 2008, p. 68). rule, the obligation to perform equal transactions is a debt that arises after the establishment of the employment relationship and pres a rule, the obligation to perform equal transactions is a debt that arises after the establishment of the employment relationship and prevents the employer from engaging in arbitrary practices (Yıldız, Gaye B.: The Obligation of the Employer to Take Equal Action, Ankara 2008, p. 68).
Accordingly, the employer, as a rule, is obliged to treat employees working at the workplace equally, to apply equal working conditions. The employer is obliged not to act differently unless there is a justified reason, to make equal use of social assistance and monetary benefits, and to officially comply with the equal treatment obligation related to public order. However, equal treatment debt does not mean that the employer will treat all employees equally in an absolute sense. The principle of equality between employees subject to different working conditions was not mentioned.
In this case, Decoupage can be made between employees.owever, equal treatment debt does not mean that the employer will treat all employees equally in an absolute sense. The principle of equality between employees subject to different working conditions was not mentioned. Dec. In this case, Decoupage can be made between employees. However, this must be in accordance with the nature of the work performed and objective measurements (Çelik, yaş, p. 179 ). The obligation to act equally applies to employees of the same nature. The employer can create different working conditions for subjective reasons such as hard work, ability, merit, as well as for objective reasons such as the job, expertise, education, seniority of the employee.
In the light of the above explanations, when the concrete event is taken into account; with the acceptance of the plaintiff’s job, part of the seasonal work was performed before 02.02.2001, the last plaintiff was on permanent staff after 02.02.2001, he was in a continuous working state at the workplace in the Provincial Directorate of Rural Services, insurance premiums were paid by a proxy and were not changed to cover the entire year, the workplace transferred to the Provincial Directorate of Rural Services was closed to Samsun by the Provincial Administration Law 5286, the transfer of his legal entity by the Samsun Provincial Administration Law 6360 and It is understood that it has been transferred to the Taksim Commission.
In this case, it is clear that the plaintiff’s year-round work in similar jobs by being hired as a permanent employee does not change the nature of the work he has done before, and ignoring this work Deciently will result in a violation of the principle of equality.In this case, it is clear that the plaintiff’s year-round work in similar jobs by being hired as a permanent employee does not change the nature of the work he has done before, and ignoring this work Deciently will result in a violation of the principle of equality. Furthermore, it is observed that a qualitative difference is created between the work done by the staff before the next or previous employment and the work done without the staff, and there is no qualitative difference between the work done without the staff and the acquisition of a new job Dec Decently about the legal basis of the transaction as a plaintiff.
On the other hand, the fact that an employee who works economically dependent on an employer has not filed a lawsuit against the employee during the working period cannot also be evaluated.the other hand, the fact that an employee who works economically dependent on an emploOn the other hand, the fact that an employee who wn other hand, fact tht an ployee whon other hand, fact tht an employee who workn the other hand, the fact that an employee who works economically dependent on an employer has not filed a lawsuit against the employee during the working period cannot also be evaluated. In fact, the Law General Assembly’s decision dated 11.11.2015 and numbered 2015/7-1115 E.-2015/2541; Date: 29.06.2016 and 2016/22-1115 E.-2016/893 K.; Date: 03.05.2017 and 2017/22-2094 E.-2017/910 K.; Date: 13.12.2017 and 2016/9 (7)-100 E.-2017/1688 K. and the day is 12/13/2017 and 2016/9 (7)-594 E.-2017/1694 K. the same conclusion has been reached in their numbered decisions.
On the other hand, it was understood that the defendant had a legal entity with Samsun Provincial Special Administration No. 6360 at the trial stage, and the merits of the case file were transferred and allocated by the deputies of Samsun Metropolitan Municipality and followed by the liquidation commission, if the defendant’s title was determined in writing in the decision as Samsun Provincial Special Administration, this error could be corrected on the spot according to the characteristics of the material event, and there was no mistake because of the failure to cause destruction; the point was not taken into account, but an opinion was made.
For this reason, while the mutual claims and defenses of the parties, the minutes and evidence in the file, the Special Chamber decision made by the General Assembly of Law, and the reasons explained in the decision to overturn must be followed, resisting the previous decision is contrary to procedure and the law.For this reason, while the mutual claims and defenses of the parties, the minutes and evidence in the file, the Special Chamber decision made by the General Assembly of Law, and the reasons explained in the decision to overturn must be followed, resisting the previous decision is contrary to procedure and the law. Therefore, the decision to resist must be overturned. CONCLUSION: It was unanimously decided on 04.04.2018 to overturn the decision to resist for the reasons shown in the decision to disrupt the Private Office by accepting the plaintiff’s attorney’s appeals, to return the preliminary appeal fee to the depositor if requested, and to close the decision correction path.