The Decision Of The Supreme Court Of Appeal On The Limitation Period And Exception In Service Determination Lawsuit
We have mentioned in our previous articles that the service determination lawsuit is a lawsuit filed in cases where the worker has not been notified or underreported to the Social Security Institution despite working in a job considered insured, or where no premium payment has been made despite the employer’s notification of employment.
First of all, the employer is obliged to notify the institution within 1 month that the employee has started work. Even if the worker does not notify the institution that he started work, this does not constitute evidence against the worker.
PERSONS WHO CAN BE CONSIDERED AS INSURED
According to Article 2 of Law No. 506 and Article 4 of Law No. 5510
1- Those who are employed by the employer with a service contract,
2- Artists, writers and thinkers employed by the employer,
3- Temporary personnel, called 4/c’li, employed within the scope of Article 4/c of 657 sk,
4- Village guards,
5- Those assigned by public administrations in return for course fees,
6- Those who employ “master” instructors in courses organized by the Ministry of National Education,
7- General housewives,
8- Foreign nationals working under a service contract are considered insured.
THE PERIOD OF FORFEITURE OF RIGHTS IN SERVICE DETERMINATION CASE
The prescription period for service determination cases is 5 years. The court may ex officio take into account whether the statute of limitations has expired or not, even if the parties do not assert it. This 5-year period starts from the end of the year in which the employee’s services were rendered. If the employee works in workplaces belonging to different employers, the prescription period starts from the date of departure from each workplace. However, in some cases, the limitation period does not apply. The following Court of Cassation Decision has ruled for these cases:
“…The plaintiff requested a decision to determine that he worked for the defendant employer and to collect his labor receivables. As clearly stated in Article 79/1 of the Law, the documents that the employer must submit to the Institution regarding the insured are left to the regulation. In the Regulation on Social Insurance Procedures, the documents to be submitted to the Institution by the employer are listed as employment declaration, monthly insurance premiums declaration, period payroll, etc. In the event that even one of these documents is submitted to the Institution or the Institution determines that the fact of insured employment is actually or registered insured employment, the period of grace period cannot be mentioned…” (Court of Cassation 21st HD. 2008/9842 E., 2009/7830 K.)
It is seen that; if one of the documents such as employment certificate, insurance premium declaration, period payroll is given to the institution by the employer, the period of forfeiture does not start. If you have completed the retirement conditions with the addition of your minus service, you must apply to the Social Security Institution for retirement application, and upon the rejection of your request, you must file a service determination lawsuit in the labor courts.