Summary:
It is neither correct nor possible to determine claims arising from labor law as definite or indefinite claims from the outset. Therefore, the possibility of filing an indefinite claim in labor law also depends on the existence of the necessary conditions for filing such a claim. If these conditions exist, an indefinite claim may or may not be filed in labor law. The same applies to partial claims.
In light of the above explanations, taking into account the specific characteristics of the case in question, the assessment made in terms of the claim for an indeterminate amount reveals that
there is no doubt that the case was filed as a claim for an indeterminate amount pursuant to Article 107 of Law No. 6100. Regarding overtime and general leave claims, even if the plaintiff can determine how many hours of overtime they worked per week and on which public holidays they worked, they cannot know the extent to which the judge will exercise their discretion to reduce the calculated amount. Therefore, overtime and general leave claims may be subject to an indefinite claim lawsuit.
TC
Supreme
Law Office
Decision No: 2014/28532
Decision No: 2016/1243
Date: 20.1.2016
CASE LAW
COURT: Labor Court
CASE: The plaintiff-counterclaimant requested the payment of severance pay, overtime, national holiday and general holiday pay, and weekly holiday pay, while the defendant-counterclaimant requested a decision on the collection of notice pay.
The court decided to dismiss the case despite accepting the main claim.
Although the parties were represented by their attorneys during the criminal proceedings, the case was reviewed, discussed, and a decision was made if deemed necessary after hearing the report prepared by the Review Judge for the case:
SUPREME COURT DECISION
The plaintiff’s representative against the defendant is the provision of Article 107 of the Code of Civil Procedure No. 6100, which forms the subject matter of the case. Th plaintiff worked as a driver at the workplace between May 10, 2007, and April 30, 2011, with a monthly salary of 900.00 TL without interruption, the employment contract was accepted by the plaintiff, the employee’s salary was consistently paid late, he was employed outside the requested job description, and the contract was terminated for other justifiable reasons.
that the working hours were from 08:30 to 19:30 on Sundays, with only a daytime break, six days a week, and that he went out at night at least twice a week, returning the ceramics at night, and that he never took annual leave during his employment period, that he worked on all national holidays and public holidays except October 29, and that he signed a contract in Hebrew stating that all his rights would be paid, requesting the collection of severance pay and part of his labor claims from the defendant.
The defendant resigned from his position on April 30, 2011, against the plaintiff’s attorney, terminated his employment contract with the plaintiff on the grounds that he could not find a new job to justify it, received wages for other employees when the plaintiff was sent outside the city on working days and outside working hours, and that the workplace was closed on public holidays.
that the defendant was closed on national holidays and public holidays, that the defendant company paid employees working five hours of overtime between 09:00 and 18:00 on Saturdays, that the plaintiff left his job, putting the defendant’s employer in a difficult position, and that he left his job without complying with the notice period, and therefore decided to dismiss the case. Th plaintiff requested the collection of the notice compensation from the defendant as a counterclaim.
The court decided to partially accept the case and dismiss the counterclaim based on the evidence gathered and the expert report.
The decision was appealed by the parties’ attorneys.
1-Considering the evidence gathered from the items in the file and the legal grounds on which the decision is based, it was necessary to reject all of the defendant’s appeals and all of the plaintiff’s appeals outside the scope of the following paragraphs.
2-The dispute between the parties that must be resolved first is that the decision point meets the conditions necessary for the case to be opened as a claim for indefinite debt.
Pursuant to Article 107 of Law No. 6100, which entered into force on October 1, 2011, it has been decided that the application shall be considered as a new type of lawsuit not covered by the Code of Civil Procedure No. 1086 and that the declaratory judgment shall be accepted.
According to Article 107 of Law No. 6100,
“(1) In cases where the exact amount or value of the claim cannot be determined by the claimant at the time the lawsuit is filed, or where such determination has become impossible, the claimant may file an indefinite claim for payment, specifying the legal relationship and a minimum amount or value.
(2) As soon as it becomes possible to determine the exact and full amount or value of the claim based on the information provided by the opposing party or the investigation conducted, the plaintiff may increase the claim stated at the beginning of the lawsuit without being subject to the prohibition on expanding the claim.
(3) Furthermore, in cases where a partial performance lawsuit may be filed, a declaratory judgment may also be filed, and in this case, it is accepted that there is a legal interest.”
This article, which was not included in the government bill, was drafted by the Justice Commission of the Grand National Assembly of Turkey and ultimately adopted on the grounds that a person seeking justice in relation to a claim whose amount or value cannot be fully determined at the outset should be protected as broadly as possible within the framework of the freedom to seek justice, thereby overcoming the difficulties faced by the legal system.
For a case to be filed as an uncertain claim case, the amount or value of the claim in dispute must not have been definitively and fully determined by the plaintiff at the time the case was filed. This inability to determine must be based on the fact that, despite the plaintiff exercising due care and diligence, it was genuinely unreasonable to expect the plaintiff to determine the amount or value, or that it was objectively impossible to do so.
The rationale for the article states, “For the creditor to be able to file such a lawsuit, it must not be possible or objectively impossible for them to actually determine the exact and full amount or value at the time of filing. If the amount of the lawsuit to be filed is known or can be determined, such a lawsuit cannot be filed. Since legal benefit is sought here, as in every lawsuit, the existence of legal benefit cannot be discussed in such a case. Particularly when the new provisions regarding partial claims are also taken into account and evaluated together, if it is possible to determine the amount from the outset, resorting to this method is unacceptable.” It is stated that if the claims are of a specific or determinable nature, it is not possible to benefit from the opportunities provided by this lawsuit by filing an unlimited claim lawsuit.
It is not possible to make a definitive classification of when a claim is uncertain and when it is certain or determinable; a conclusion must be reached by considering the specific characteristics of each case in relation to the claim.
Article 107/2 of Law No. 6100 provides criteria that serve as a guide in resolving the issue.
The other paragraph of the aforementioned article states that a piece of information or the result of an investigation that allows the amount or value of the claim asserted by the plaintiff at the time to be determined fully and definitively, without being subject to the possible extension of the prohibition specified at the beginning of the case, may increase the claim under the provision covered by the article and also describes the situation where it can be determined “by means of evidence obtained by the other party as a result of investigation and inquiry or evidence submitted by them and by providing information about the result of the process (such as mining or expert discovery)”.
If the plaintiff does not have the information and documents necessary to determine the amount or value of the claim and it is not (truly) possible to obtain these documents during the preparatory stage of the case, and therefore it becomes possible to determine the amount of the claim by presenting the information and documents in the possession of the opposing party, the claim should be considered indefinite.
The existence of a dispute between the parties regarding the amount of the claim does not mean that the outcome of the lawsuit cannot be expected from the plaintiff. The real issue is that the objective determination of the outcome of the lawsuit cannot be expected from the plaintiff. If there is a dispute or disagreement between the parties, and if the amount of the claim is deemed sufficient to file an action for an indefinite claim, then almost all cases must be considered as actions for an indefinite claim, which is contrary to the law. Almost all cases should be considered as cases involving uncertain claims, which is contrary to the purpose of the law. This is because there is already a dispute, and the dispute is brought before the court by filing a lawsuit.
The main issue is whether the plaintiff has the opportunity to assert their claim in a specific manner. It should be noted here that the determinability and provability of the claim must be assessed separately. It is possible to objectively determine the claim sought by the plaintiff, but if it is not possible to determine the claim and prove it as required by law (with the evidence at hand), then it cannot be said that a claim for an indefinite debt will be filed. This is because determining the claim and proving it are two separate things. The plaintiff may be able to clearly determine what they are claiming as the subject of the claim, but they may not always be in a position to prove it.
Accepting the contrary could lead to a situation that is contrary to both the purpose of the law and general principles, such as converting a claim that is difficult to prove into an indefinite claim. Where the determination of the amount of the claim, depends on the examination of evidence during the investigation phase, an expert examination, or other procedures such as discovery, it should be accepted that an indefinite claim lawsuit may also be filed. However, resorting to an expert examination in a lawsuit is not sufficient to file an indefinite claim lawsuit.
Even if an expert is consulted in a case, if the plaintiff can determine the amount of the claim when filing the lawsuit, an unlimited claim lawsuit cannot be filed.Furthermore, it cannot be said that certain types of cases or cases filed by certain individuals are, from the outset, specific or unspecified claims. An indefinite claim should be determined by applying the criteria established for that case to a concrete situation.
Where the judge has discretion in determining and assessing the amount of the claim (e.g., Turkish Code of Obligations No. 6098, Art. 50, 51.56), it must be accepted that it is impossible for the plaintiff to determine the amount or value of the claim precisely and definitively as a result of the discretion exercised by the judge, since the claims may become specific as of the date the lawsuit is filed.
For example, in labor law practice, it is accepted that if the Supreme Court does not base overtime, weekend, public holiday, and national holiday wage claims on written documents and instead relies on workplace records and witness statements, an appropriate discretionary reduction should be made based on the period taken into account and the amount obtained thereafter. In this case, since the discount rate to be applied to the amount of the claim calculated based on the judge’s discretion and witness statements is not predetermined, the claim must be considered uncertain.
With Law No. 6100, the possibility of filing a lawsuit for indefinite claims within the framework described above has been granted, expanding the freedom to seek justice for uncertain claims. In connection with this, the possibility of filing a partial lawsuit without mediation assistance has been limited. However, it has not been completely eliminated.
From time to time, it is seen that the new regulation on filing partial claims, adopted together with Law No. 6100, does not clearly define the boundary between the two, and one is used in place of the other. However, the purpose and nature of these two claims are distinct.
If the claim is certain or determinable, an unlimited claim cannot be filed, but a partial claim can be filed if the conditions are met.
The law has not completely eliminated the possibility of filing a partial claim; even if legally protected, specific claims, uncertain claims have been filed, and the legal conditions have been met, a partial claim may be filed if there is an interest. Otherwise, only two possibilities can be considered: filing an uncertain claim lawsuit or filing a specific full claim lawsuit. In this case, Article 109 of Law No. 6100 applies to partial claims. The provision in the article cannot be said to be applied in practice.
This is because, in an action for an indefinite claim, the action can be filed by taking advantage of the possibilities offered by an action for an indefinite claim; if the claim is specific, only an action for full payment can be filed. However, in accordance with the principle that the legislator does not engage in futile activities, a partial action can be filed, taking into account the regulation on partial actions in the aforementioned article and the limitations in the Code.
The point that needs to be clarified here is that if a lawsuit is filed as an indefinite claim in the petition, even if no conditions are required,The lawsuit must be dismissed on the grounds that there is no legal benefit without granting the plaintiff a period of time.
Since it is possible to determine the claim, the Law does not allow such a lawsuit to be filed. In such a case, the lawsuit must be dismissed without granting a period of time, as there is no legal benefit in filing an unlimited claim lawsuit. Since the claim is evident here, it is not possible to grant a period of time by applying Article 119/1 of Law No. 6100; even though an action for an indefinite claim has been filed, it should not have been filed in practice, and the case must be dismissed on the grounds that there is no legal benefit, as this deficiency cannot be remedied by granting a period of time.
The legal benefit here is not a legal benefit that can be completed later. This is because a legal benefit that did not exist at the time the lawsuit was filed is not a legal benefit that can be completed in a situation that is clearly known to the court. Accepting the contrary would mean that the plaintiff’s current claim must be amended within the time limit and that the plaintiff must be provided with additional opportunities to benefit from legal remedies in terms of procedure, which would be contrary to the principle of equality between the parties.
Furthermore, if a minimum amount is specified in the lawsuit and it is understood that this is part of the claim, but it is unclear whether it is a lawsuit for an uncertain claim or a partial lawsuit for a specific claim, Article 119/1 of Law No. 6100 applies in this case. The outcome of the claim will not be clearly stated as required by the article. If the claim, the type of claim, and the nature of the case are not clearly understood, and if the claim is uncertain, the plaintiff shall be given a definitive one-week period in accordance with Article 119/2 of the same Law, and shall be asked whether the claim is an unlimited claim or a partial claim.
After this period, the procedure shall be followed according to the plaintiff’s explanation of the claim. If the plaintiff explains the claim as an action for an indefinite claim, but it does not actually meet the conditions of an action for an indefinite claim, the above procedure should be followed, and the case should be dismissed due to lack of legal interest. If, after disclosure of the claim, it meets the conditions of an indefinite claim, the case should be decided based on the outcome of this case; if it meets the conditions of a partial claim, the case should be decided based on the outcome of the partial claim. (Based on our Chamber’s decision dated 31.12.2012 and numbered 2012/30091, decision numbered 2012/30463).
In Article 110 of Law No. 6100, in the event of the accumulation of lawsuits (objective joinder of lawsuits), defined as the plaintiff filing multiple independent claims against the same defendant in the same complaint, it is accepted that there are as many claims as there are lawsuits. Therefore, pursuant to Article 297/2 of the same Law, a separate reserve must be set aside for each claim. In this case, it will be necessary to assess separately for each claim whether the claims asserted in the complaint are uncertain claims.
As a result of all these explanations, with regard to claims arising from labor law,
It should be noted that, as a rule, it is not correct or possible to determine a claim as definite or indefinite from the outset in a claim lawsuit. Therefore, the possibility of filing an indefinite claim lawsuit in labor law also depends on the existence of the necessary conditions for filing such a lawsuit. If these conditions exist, an indefinite claim lawsuit may or may not be filed in labor law. The same applies to partial lawsuits.
In light of the above explanations, taking into account the characteristics of the specific case that forms the subject matter of the lawsuit, in the assessment made regarding the uncertain claim lawsuit;
there is no doubt that the lawsuit was filed as an uncertain claim lawsuit in accordance with Article 107 of Law No. 6100. Regarding overtime and general leave claims, even if the plaintiff can determine how many hours of overtime they worked per week and on which public holidays they worked, they cannot know the extent to which the judge will exercise their discretion to reduce the calculated amount. Therefore, overtime and general leave claims may be subject to an indefinite claim lawsuit.
As for the severance pay in dispute, as can be understood from the content of the case, the plaintiff can determine the length of service, the last salary paid, and the amount of monthly salary he claims to have received. Additional monetary or monetarily measurable social rights can also be determined based on the October salary, which will be used as the basis for calculating the severance pay.In this case, severance pay is not an indefinite amount. It is understood that the claims in question are actually determinable claims and cannot be the subject of an indefinite claim lawsuit. Since no legal benefit can be obtained in terms of severance pay, the lawsuit must be dismissed on procedural grounds, and the written decision on the merits is erroneous and should be overturned.
3-As explained above, it is understood that overtime and general leave claims are claims that can be subject to an indefinite claim lawsuit. The plaintiff’s attorney filed an unlimited claim lawsuit; since the lawsuit was filed and the entire claim was time-barred, increasing the claim is a matter of entitlement pursuant to Article 107/2 of Law No. 6100, and it was incorrect to take the statute of limitations into account in the entitlement lawsuit. Since the amounts claimed with the claim for increase are not subject to the statute of limitations, it is erroneous to reach a conclusion without considering that a provision should be made for these amounts and that they should be reversed.
CONCLUSION: For the reasons explained above, it was decided by majority vote on January 20, 2016, to REVERSE the judgment and, if requested, to refund the appeal fee previously paid to the relevant party.Disputes; determining whether this case meets the necessary conditions to be classified as an “uncertain claim”; and the determination that uncertain claims cannot be made the subject of a partial lawsuit; In a lawsuit filed as an “uncertain claim,” even if the court concludes that uncertain conditions do not exist, the legal requirement for a claim of interest at the time the lawsuit is filed is a situation that can be collected later.
As is known, Article 107 of the Code of Civil Procedure No. 6100, which entered into force on October 1, 2011, states that The concept of “uncertain claims,” which was not included in the repealed Code No. 1086 and for which a new trial is envisaged, has been incorporated into the concept of this lawsuit, and “determination lawsuits” that can be filed have been accepted. According to the aforementioned Article 107, the plaintiff may file an action for an indefinite claim by specifying the legal relationship and a minimum amount or value in cases where it is impossible or impracticable to determine the amount or value of the claim “fully and definitively” as of the date the action is filed.
As soon as it becomes possible to determine the exact amount or value of the claim based on the information and/or documents submitted by the opposing party or as a result of the investigation, the plaintiff may increase the amount of the claim specified in the petition without being subject to the prohibition on expanding the claim. Additionally, pursuant to this provision, the plaintiff may also file an indefinite claim lawsuit in the form of a declaratory judgment instead of a performance lawsuit. In summary, if the conditions for filing an action for an indefinite claim are met, the plaintiff may file an action for an indefinite claim (action for performance) within the meaning of the first paragraph of Article 107, as well as an action for a declaratory judgment (Article 107/3) or a partial action (Article 109).
Although the draft is not before the government, the regulation of the aforementioned article of the law by the Justice Commission of the Grand National Assembly of Turkey essentially aims to protect the rights that a person who can file a lawsuit should obtain, particularly in terms of avoiding the starting date of interest and the statute of limitations, where a predetermined amount or value cannot be fully determined. In this regard, based on the provision of the law, in order for an action for an uncertain claim to be filed, the amount or value of the claim in dispute must be “fully and definitively” determined by the plaintiff as of the date the action is filed.
However, in light of the wording of the provision, it can be said that the inability to determine the amount or value must be based on objective conditions. In other words, even if the plaintiff has sufficient legal knowledge and calculation skills, it should not be objectively expected of them to determine the amount or value of the receivable credit completely and definitively without a trial.
In this regard, it is considered important that the provision of Article 107 mentioned above clarifies the criterion of objectivity and determines the course of action that the plaintiff may follow once the condition of “uncertainty” ceases to exist.
Regarding the conditions for uncertain claims and how the element of objectivity should be understood in cases concerning employee claims:
As is known, the preparation of documents concerning the rights and obligations of employees and employers under labor and social security law, and their submission to the relevant authorities in accordance with the legislation, is essentially the employer’s obligation (Law No. 4857, Articles 8, 32, 37, 67, 75). At this point, can it be said that the conditions for filing a lawsuit for an uncertain claim and the rules of evidence law have no connection with each other? Contrary to the majority opinion; In our opinion, given the phrase “complete and comprehensive” in the first paragraph of Article 107 and the clear provision of the second paragraph, it does not seem possible to answer this question positively.
Of course, it would be incorrect to say that the creditor’s lack of information and equipment or the complexity of the transaction are effective reasons for this; in any case, the claim is uncertain in a situation that requires an account report. However, in cases where the claim is asserted in the petition that the claim cannot be determined “fully and definitively” due to the inability to access the information and documents in the possession of the opposing party, and where this situation is substantiated, the path of filing an unlimited claim lawsuit should be pursued
Certain categories or specific types of claims cannot be overemphasized when attempting to avoid discussing those that are certain or uncertain from the outset; on the other hand, when annual leave severance pay claims are considered “determinable” bets, accepting uncertain claims creates a contradiction in our opinion.
Indeed, even though there is no legal basis for it, when a determinable claim is mentioned alongside uncertain claims, it cannot be concluded that this is not the correct solution in accordance with the law, given the phrase “full and final.” Therefore, if the plaintiff can specify in concrete terms the reasons why they cannot determine the exact and definitive amount or value of the claim, the type of claim should not be relevant in terms of the case being filed as an uncertain claim case.
To make the issue more concrete:
In the petition for severance pay and annual leave, it is claimed that the employee worked at the workplace for ten years with a monthly salary of 1000 TL, that he was considered to be on leave last year, and that the claim was filed without the leave being used; however, the reason for this is unclear, as the grounds for the claim are not explained. it does not seem likely, in our opinion, that such a lawsuit would be accepted as vague allegations.
However, the plaintiff claims that part of his approximately ten years of work was performed without insurance; that part of the Social Security Institution and the defendant’s workplaces was underreported; that part of the annual leave distributed was scattered and incomplete; that there is no documentation regarding food and clothing assistance provided at the workplace; argues that clues regarding premiums and bonuses, as well as minutes, were distributed and that a sample of the annual leave record could not be obtained. Is it possible to conclude that the court could consider such claims to be uncertain in this case?
According to the arguments put forward in the majority opinion of the Chamber, even in such a case, it does not appear possible to file the case as an action for indefinite claims. According to the aforementioned opinion, since the provability of the case is a completely separate issue, it must be accepted that there are no conditions for filing an action for indefinite claims even in this case. However, the wording of Article 107 and the very clear wording of the provision on the subject do not seem to allow for such an interpretation. In our opinion, it is not appropriate to adopt the solution mentioned above, considering that the legislator’s view is also in the same direction. It is unacceptable to arrive at an interpretation that clearly contradicts the text of the law based on the rationale of the law or the presumed intent of the legislator.
Furthermore, the relationship between the wages, whose amount is uncertain, and the severance pay and annual leave entitlement claimed by the defendant in the employer’s response, At the outset of the case, as unsubstantiated claims; that uninsured workers should actually be employed for the duration of their stay; that wages could change every month; that fixed wages could not be paid for long periods; that offers regarding transportation and food assistance were added to the attached documents; that therefore the plaintiff argued that the court should determine exactly when and how it was requested using its own methods; we believe that the local court could decide that this case cannot be subject to an uncertain claim lawsuit.
In our opinion, in such a case where the approximate amount of the claim can be determined by reference to the subject matter or the difference in the law of evidence, it would not be correct to dismiss the case on the grounds that there is no legal interest, and the existence of uncertain claim conditions should be accepted.
On the other hand, Article 114 of Law No. 6100 adopts the existence of legal interest on the part of the plaintiff as a condition for filing a lawsuit; in declaratory actions filed due to uncertain claims, it is presumed that the plaintiff has legal interest (Article 107/3). In our opinion, when an action for an indeterminate claim is filed, if it is disputed whether the claim is certain, it would be appropriate, in order to clarify the issue and determine whether there is a legal interest, to apply the second and third sentences of the second paragraph of Article 115 and give the plaintiff a specific period of time, both in terms of procedural economy and preventing the victimization of individuals.
For the reasons explained above, we concur with the opinion of the Anti-Corruption Directorate (No. 2) has not participated. 20.01.2016