Insurance Service Determination Court Of Cassation Decision
T.C.
JUDICIARY
LAW DIVISION
E. 2008/9842
K. 2009/7830
T. 4.6.2009
DETERMINATION OF EMPLOYMENT ( In the event that even one of the Employment Notification, Monthly Insurance Premiums Notification, Period Payroll Documents has been submitted to the Institution or the Institution has determined the fact of actual or recorded insured employment, there can be no mention of a period of ineligibility )
RIGHTS DECREASE PERIOD ( Determination of Employment – Employment Entry Declaration Monthly Insurance Premiums Declaration Period Payroll Documents cannot be mentioned in the event that even one of the documents has been submitted to the Institution or the Institution has determined the fact of actual or recorded insured employment )
FACT OF INSURED EMPLOYMENT ( Determination of Employment – In the event that even one of the Employment Entry Declaration, Monthly Insurance Premiums Declaration, Period Payroll Documents has been submitted to the Institution or the Institution has determined the fact of actual or recorded insured employment, there can be no mention of a period of ineligibility )
DOCUMENTS SUBMITTED TO THE INSTITUTION (In the event that even one of the documents is submitted to the Institution or the Institution determines that the fact of actual or recorded insured employment cannot be mentioned)
506/m.79/1
SUMMARY : 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 to be submitted by the employer 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 if the Institution determines that the fact of insured work is actually or registered, the period of forfeiture cannot be mentioned.
THE CASE : The plaintiff requested a decision on the determination that he worked for the defendant employer between 1.12.1998-31.5.2004 and the collection of labor receivables.
The court decided to partially accept the request as stated in the judgment.
Upon the appeal of the judgment by the plaintiff’s attorney, after it was understood that the request for appeal was in due time and after the report prepared by the Examining Judge Sultan Namazcı and the papers in the file were read, the matter was considered and the following decision was determined:
DECISION : The lawsuit is related to the determination of the periods that were not reported as the plaintiff worked continuously between 01.12.1998-31.05.2004 based on the service contract at the defendant’s workplace between 01.12.1998-31.05.2004 and the claim for labor receivables from the defendant employer.
The court decided to partially accept the claim for labor receivables and to reject the claim for the period before the employment notification dated 21.4.200 due to the period of forfeiture.
The dispute is centered on whether the statute of limitations has expired or not.
Employees are automatically deemed to be insured in the presence of the conditions stipulated in Article 2, provided that they are not among the exceptions specified in Article 3 of the Social Insurance Law No. 506.
The norm stipulating that the insurance rights and obligations of the insured and their employers shall start from the date of employment of the insured shall be effective upon the registration of the insured.
The case conditions for the determination of undeclared work are defined in Article 79/10 of the Social Insurance Law No. 506. These conditions can be listed as; being considered as an insured within the scope of Law No. 506, the documents determined in the regulation not being submitted to the Institution or the work not being determined by the Institution, and the aforementioned lawsuit being filed within the prescriptive period.
The insured may request the determination of his/her undeclared work within five years from the end of the year in which the undeclared work was performed and the period of limitation begins to run. The prescriptive period is foreseen in terms of undeclared work.
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 if the Institution determines that the fact of insured employment is actually or registered, the period of forfeiture cannot be mentioned.
In case of intermittent work, the existence of the conditions of the lawsuit for each working period before and after the interruption will be determined by taking into account the above-mentioned facts.
When the concrete case is examined; it cannot be said that the statute of limitations has elapsed in the face of the fact that the defendant employer reported some of the stolen work to the Institution and recorded it; the fact of continuous work in the alleged period, which was not reported to the Institution according to the file content and payroll witness statements, has been proven. The decisions of the General Assembly of the Court of Cassation dated 26.02.2003 and numbered 2003/21-44-98 and dated 23.06.2004 and numbered 2004/21-369-371 also addressed these issues.
The work to be done; Considering that the plaintiff’s work between 01.12.1998-31.05.2000 was continuous and that these works were fully reported to the defendant Institution for the period between 21.04.2000-31.05.2000 and that there is no legal benefit in the redetermination of this period, it should be decided to accept the request for determination from 01.12.1998 to 21.04.2000, when the notification was made, and the labor receivables of the plaintiff should be calculated by the expert.
The court’s decision to dismiss the case as written, instead of partially accepting the case with incomplete examination and erroneous evaluation without taking these material and legal facts into consideration, is contrary to the procedure and the law and is a reason for reversal.
In that case, the plaintiff’s objections on appeal in this respect should be accepted and the judgment should be reversed.
CONCLUSION : It was unanimously decided on 04.06.2009 that the judgment shall be reversed for the reasons explained above, the other appellate objections of the plaintiff shall not be examined for the time being, and the appeal fee shall be returned to the plaintiff upon request.