Labor Claims Litigation
T.C JUDGMENT
9th Civil Chamber
Basis: 2017/ 17885
Decision: 2019 / 1250
Decision Date: 16.01.2019
Case: The appeal of the decision given as a result of the lawsuit between the parties was requested by the defendant T.C. … attorney, 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 retired as a cleaning worker from 15/03/2005 at the … Training and Research Hospital affiliated to the T.C. … Training and Research Hospital affiliated to the … Training and Research Hospital affiliated to the …, his last employer was the … Company, claiming that he worked 5 days a week, worked on national holidays, worked on religious holidays except for the first day, claimed that some of his leaves were not used, and demanded a decision to collect severance pay, overtime, leave pay receivable, national holiday general holiday receivable, without prejudice to the right to claim and sue for more.
B) Summary of the Defendant’s Response:
The defendant … Joint Venture attorney stated that a fixed-term service procurement contract was signed between his client company and the other defendant T.C. …, that the workers received orders and instructions from the administration, which is the main employer, and that the plaintiff worked directly for T.C. … … ‘s employee and the lawsuit filed against the client company should be dismissed due to lack of hostility, the plaintiff worked for the client company within a period of 5 months, he should have worked for 1 year in order to be entitled to severance pay, his leaves were used, The defendant T.C. … defended that he did not work on national holidays and general holidays and that he did not work overtime, and requested a decision on the acceptance of the objection of hostility and the dismissal of the lawsuit primarily for hostility, and if the objection of hostility is not accepted, the unfair and groundless lawsuit should be dismissed on the merits.
The defendant T.C. … … attorney stated that it is against the law to direct the hostility to the client administration in the lawsuit filed by the plaintiff, and that the defendant administration has the right to contract the cleaning, catering, security, etc. of the hospital. The real-legal persons who undertake the work subject to the tender as a result of the tender undertake to perform the work subject to the tender and the mutual debts and obligations between the parties are determined by the contract, the company acts independently of the business owner in the selection of the tools and grounds used in the work subject to the tender and the selection of the workers, arguing that the administration is not an employer but a business owner, that the plaintiff is not an employee of the institution but the employee of the non-suiting employer who received the tender, that it has been ruled that the labor receivables will expire in 5 years, therefore, the paid leave, national holiday, general holiday and overtime receivables requested by the plaintiff are time-barred, and requested the dismissal of the lawsuit filed without legal basis contrary to the procedure and law.
C) Summary of the Local Court Decision and Trial Process:
The court, based on the evidence collected and the expert report, concluded that there was a principal-subcontractor relationship between the defendant Ministry and the defendant company, that the plaintiff’s last employment at the … … Training and Research Hospital belonging to the defendant Ministry was with the defendant company and lasted until 31/07/2013, that he last received a gross salary of 1.021,50 TL, that he requested an allocation on 31/07/2013, that the plaintiff’s retirement request was made on 31/07/2013, and that as stated in Article 14 of the Law No. 1475, which was left in force with Article 120 of the Law No. 4857. As stated in Article 14 of the Law No. 1475, which was repealed by Article 120 of the Law No. 4857, the plaintiff was entitled to receive severance pay due to retirement, it was determined that the plaintiff used a total of 30 days of leave from the leave forms submitted by the defendant party, who has the burden of proof that the annual leaves were used and their wages were paid, it was determined that the plaintiff used a total of 30 days of leave, and that there were 70 days of leave remaining from the leave period he deserved due to his seniority, from the witness statements of the plaintiff; Since it is seen that he worked on half of the national holidays and general holidays, and there is no information and documents regarding the payment of wages for this, the plaintiff’s partial acceptance of this request, 6 days a week 07: 00-16:00, 6 days a week, 8 hours of work per day and 48 hours of work per week when 1 hour of rest is subtracted from 9 hours of work between 07:00-16:00, and when the minimum working time of 45 hours is deducted from this period, it was decided to partially accept the lawsuit on the grounds that there was 3 hours of overtime work per week.
D) Appeal:
The decision was appealed by the defendant Ministry.
E) Grounds:
1- According to the writings in the case, the collected evidence and the legal grounds on which the decision is based, the objections of the defendant T.C. … to the appeals other than those covered by the following paragraph are not relevant.
2- The plaintiff clearly stated in the lawsuit petition that he worked 5 days a week at the defendant workplace and claimed overtime wages. The court’s acceptance that the plaintiff worked six days a week in excess of his claim is contrary to the principle of adherence to the facts stated in Article 25 of the CCP No. 6100 and requires reversal.
F) CONCLUSION:
It was unanimously decided on 16.01.2019 to VACATE the appealed decision for the reasons written above.