Both Public And Private Companies Are Responsible For The Severance Pay Of Subcontracted Workers
9th Civil Chamber
Principal Number: 2017/13142
Decision Number: 2020/69
“Case Law Text”
COURT :LABOR COURT
The appeal of the decision rendered as a result of the lawsuit between the parties was requested by the attorneys of the defendants, and it was understood that the appeal requests were in due time. After listening to the report prepared by the Examining Judge for the case file, the file was examined, the necessity was discussed and thought:
JUDGMENT OF THE COURT
A) Summary of the Claimant’s Request:
The plaintiff’s attorney stated that his client worked as a cleaning staff and left the job as a retiree, that his salary was paid over 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 wages, that he also worked on holidays, that he never used his annual leave, that the fixed-term employment contract with the plaintiff more than once in a row turned into an indefinite-term contract from the beginning, that the plaintiff was entitled to severance pay; without prejudice to his rights regarding the excess, 1. 000.00 TL severance pay with the highest bank interest applied to deposits as of 29/01/2015, the date of dismissal, 100.00 TL annual paid leave receivable with legal interest, 100.00 TL overtime wage with the highest bank interest, 100.00 TL national holiday and general holiday wage with the highest bank interest, and the collection of trial expenses and attorney fees from the defendants.
B) Summary of Defendant Response:
Defendant Public Hospitals Authority of Turkey attorney; the lawsuit should be dismissed due to the lack of legal interest and the indefinite receivable lawsuit cannot be filed, the lawsuit was filed, the wage receivables that became due 5 years before the date of the lawsuit were time-barred, the plaintiff was employed as a cleaning worker in different companies from 01/01/2005 to 29/01/2015 as a cleaning worker at … University … He worked at the Training and Research Hospital, terminated his employment contract with a retirement petition on 29/01/2015, argued that the expenses related to notice and severance pay were paid to the company within the contract and general expenses, that the administration has no responsibility, that they are not the main employer and the responsibility belongs to the contractors, that the main employer is the aforementioned companies, and requested a decision to dismiss the lawsuit on the basis of hostility and merits.
Defendant … İnş. Ltd Şti. attorney; Within the framework of Law No. 6552 and the relevant regulation, the companies, which are subcontractor companies, are not responsible for the claims of the plaintiff, they objected to hostility, the plaintiff left the job voluntarily without any justifiable reason, and there is no severance pay receivable, there is no document submitted to the company that he retired, the plaintiff only petitioned that he wanted to leave the job due to his retirement day, the responsibility of their company is limited to the time the plaintiff worked in their company, The claim that the claimant worked 6 days a week is not true, the weekly working time did not exceed 45 hours, all the rights of the claimant were paid in full, there was no continuous work on national holidays and general holidays, there was no continuous work on national holidays and general holidays, the claimant was paid for the work, the claimant worked in the company and used his annual leave right for a period of one year, the claimed receivables were time-barred, and requested the dismissal of the lawsuit on the basis of hostility and merits.
C) Summary of the Local Court Decision:
The court decided to partially accept the lawsuit.
D) Appeal
The judgment was appealed separately by the attorneys of the defendants.
E) Grounds:
1-According to the writings in the case, the evidence gathered and the legal grounds on which the decision is based, the objections of the defendant company and the defendant institution’s attorney’s appeals other than the scope of the following paragraph are not relevant.
2- The main dispute between the parties centers on the determination of the legal relationship between the changing sub-employers and its effects on the labor rights of the employee.
Article 2 of the Labor Law No. 4857 defines an employer as a natural or legal person or unincorporated institutions and organizations that employ workers based on an employment contract. Therefore, in order to speak of a principal employer-subcontractor relationship, there must first be an employer who has a workplace where goods or services are produced and a second employer who takes work in the same workplace in order to speak of a principal employer-subcontractor relationship. It is not necessary for the sub-employer to initially have a workplace. The sub-employer may have acquired the title of employer for the first time due to the work it receives from the principal employer and the workplace where this work is carried out.
The question of whether an independent workplace can be mentioned for the sub-employer due to the subcontracting of an auxiliary work belonging to the production of goods or services carried out in the workplace of the main employer must first be resolved. This is because the concept of workplace should be clarified at this point in order to determine whether the change of the main employer or sub-employer is a transfer of workplace.
When we look at the problem in terms of the Trade Unions Law No. 2821, although it is necessary to say that the line of business to which the main work is subject is also valid for the auxiliary work, in the face of the clear provision of Article 3 of the Law No. 4857, the situations where the work is left to the subcontractor should be excluded from this. Indeed, although Article 2/III of the Law No. 4857 states the main rule, which is in line with the Law on Trade Unions, as “A workplace is a whole within the scope of the work organization formed by the places, annexes and vehicles connected to the workplace”, the relationship between the main employer and the sub-employer is regulated in the following subparagraphs, and in a sense, a separate situation is envisaged with the subcontracting of auxiliary work to the sub-employer. Subsequently, Article 3 of the same law explicitly resolves the problem by stating that “The sub-employer is obliged to make a notification in accordance with the provision of the first paragraph for its own workplace, which it has created for the production of goods or services in this capacity”, and that the workplace of the sub-employer is independent from the workplace of the principal employer. This solution is also in accordance with the nature of the subcontracting institution. The Court of Cassation General Assembly of Civil Chambers concluded that the workplace of the subcontractor is independent from the workplace of the principal employer even before the entry into force of the Law No. 4857 (Court of Cassation HGK. 6.6.2001 dated 2001/ 9-711 E, 2001/ 820 K).
The transfer of the whole or part of the workplace to another person based on a legal transaction can be defined as the transfer of the workplace. Article 6 of the Law No. 4857 stipulates that in the event of the transfer of the workplace as a whole or a part of it to another person based on a legal transaction, the existing employment contracts shall be transferred to the transferee. According to this expression, the transfer of the workplace in which the sub-employer carries out its activities within the scope of the work received from the main employer by the sub-employer to another employer is a transfer of the workplace within the scope of Article 6 of the Labor Law No. 4857. The established case law of our Chamber is in this direction (9th HD. 18.9.2008 dated 2006/26306 E, 2008/23980 K.).
It is also possible to conclude a contract explicitly envisaging the transfer of the workplace between the subcontractor whose term has expired and the new subcontractor. In cases where the employees who will continue to work for the new sub-employer despite the change of the sub-employer are determined, it is undisputed that the employment contracts of the aforementioned employees are transferred to the transferee employer. However, it is necessary to accept that the employment contracts of the employees who are not listed among the employees who will work for the new sub-employer and who are not notified by the sub-employer whose term has expired to be employed in another workplace are terminated by the transferring sub-employer.
There is no legal relationship between the subcontractors in the case where the subcontractor leaves the workplace by showing another workplace to all of its employees at the end of or before the end of the working period that the subcontractor has contracted with the main employer, based on the reason for the termination of the relationship, and then the work is given to another subcontractor by the main employer. Since the legal relationship is between the subcontractors and the main employer, the mentioned situation cannot be considered as a transfer of workplace between subcontractors.
The most common way of changing subcontractors is that the subcontractor whose term 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 to determine its legal consequences. What should happen in the change of subcontractors is that the expiring subcontractor takes its employees with it to other workplaces or terminates their employment contracts. On the contrary, if the sub-employer’s employees continue to work for the new sub-employer in the same manner despite leaving the sub-employer’s workplace, a transfer of workplace between the sub-employers within the meaning of Article 6 of the Labor Law should be accepted. In this case, it is stipulated in the same article that the new sub-employer also takes over the ongoing service contracts.
If we do not accept the change of sub-employers without any legal transaction between them as a transfer of the workplace, it may cause loss of rights since each sub-employer will be responsible for labor rights related to its own period and the responsibility of the main employer cannot exceed the responsibility of the sub-employer as required by law. For example, sub-employers who periodically employ workers for a period of 11 months and 29 days in the workplace will never be obliged to pay severance pay and vacation pay, but the responsibility of the main employer for these labor rights for the entire period will come to the fore. However, it is unthinkable that the responsibility of the main employer exceeds the responsibility of the sub-employer or employers.
Article 14/2 of the Law No. 1475 can be considered as a broader provision that also covers the transfer of workplaces as specified in Article 6 of the Law No. 4857. Indeed, after mentioning the transfer or assignment of workplaces in the article, it is stated that “…or any transfer from one employer to another employer or transfer to another place by any means…” and the scope of application is drawn more broadly than Article 6 of the Labor Law No. 4857. Therefore, in terms of severance pay, whether or not there is a legal or de facto connection between the sub-employer who leaves the workplace after the termination of the principal employer-sub-employer relationship and the sub-employer who subsequently takes the same work, in terms of severance pay, the previous employer’s liability limited to the wage on the date of transfer and its own period, and the liability of the last sub-employer for the entire period should be accepted.
The basic criterion for the transfer of a workplace is the preservation of the identity of the economic unit. Whether tangible and intangible elements are transferred and their value at the time of transfer, the transfer of the workforce, the transfer of the customer environment, the degree of similarity of the activities carried out in the workplace before and after the transfer, and the duration of the interruption of activities in the workplace are accepted among the criteria for the transfer of the workplace.
According to these explanations; in the event that the employee works without a break in the workplace of the changing sub-employers within the scope of the work received from the main employer, it is necessary to be resolved according to the rules of workplace transfer. In this case, the changing sub-employers are deemed to have taken over the employment contract and the labor rights of the employee. Unless a notice of termination is made by the employee or the sub-employer who are parties to the employment contract, the employment contracts will continue with the changing sub-employer, and the conditions for the employee who continues to work in the workplace, the conditions for claiming notice and severance pay and vacation pay, which are rights related to termination, are not deemed to be fulfilled.
On the other hand, in the event of termination of the employment contract of the worker by the subcontractor whose term has expired, since the employment relationship will end with the termination notice, the worker’s subsequent work with the new subcontractor is a new employment contract. In this case, since the conditions for the claim of the termination-related rights will be realized, it will be necessary to evaluate the entitlement status according to the nature of the termination.
In the concrete dispute; the defendant … İnşş. Ltd. is the last sub-employer and is jointly and severally liable for the severance pay together with the other defendant organization. The court, in violation of the recourse rights of the defendant corporation, has held that the defendant … İnş. Ltd. not to be held responsible for the severance pay, which violates the recourse rights of the defendant institution, is erroneous and required a reversal.
F) CONCLUSION:
It was unanimously decided on 13.01.2020 that the appealed decision shall be reversed for the reasons written above, and the prepaid appeal fee shall be refunded to those concerned upon request.
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