Uncertain Claims In Labor Claims – Overtime And General Holiday Claims Supreme Court Decision
Summary:
As a rule, it is not correct or possible to determine claims arising from labor law as either definite or indefinite claims from the outset. Therefore, in labor law, the possibility of filing an indefinite claim depends on the existence of the necessary conditions for filing such a claim. If these conditions exist, an indefinite claim can be filed in labor law; otherwise, it cannot. The same applies to partial claims.
In light of the above explanations, considering the specific circumstances of the case at hand, the assessment regarding the claim for an indeterminate amount is as follows:
There is no doubt that the claim was filed as a claim for an indeterminate amount pursuant to Article 107 of Law No. 6100. Regarding overtime and public holiday claims, although the plaintiff can determine how many hours of overtime they worked per week and on which public holidays they worked, they are not in a position to know what percentage of the calculated amount the judge will deduct at their discretion. For this reason, overtime and public holiday claims can be the subject of an uncertain claim lawsuit.
T.C.
Court of Cassation
22nd Civil Chamber
Case No: 2014/28532
Decision No: 2016/1243
Date: 20.1.2016
SUPREME COURT DECISION
COURT: Labor Court
CASE: The plaintiff-counterclaimant requested a decision ordering the payment of severance pay, overtime, national holiday and general holiday, and weekly holiday wages, while the defendant-counterclaimant requested a decision ordering the collection of notice pay.
The court ruled in favor of the main claim and dismissed the counterclaim.
The case was appealed by the parties’ attorneys within the time limit for judgment. After hearing the report prepared by the Review Judge for the case file, the file was examined, and the necessary discussions and deliberations were made:
C O U R T O F C A S T I O N D E C I S I O N
The plaintiff-counterclaimant’s attorney argued that the case was a claim for the determination and collection of an indefinite amount pursuant to Article 107 of the Code of Civil Procedure No. 6100, and that the plaintiff worked continuously as a driver between May 10, 2007, and May 30, 04.2011, as a driver for a monthly salary of 900.00 TL, that the employment contract was justifiably terminated by the plaintiff employee due to the constant late payment of wages, attempts to assign work outside the job description, and other reasons, that he worked six days a week, only taking Sundays off, between the hours of 08:30 and 19:30, and that he also transported ceramics at least twice a week, leaving in the evening and returning at night. He stated that he never took annual leave during his employment, that he worked on all national holidays except October 29, and that he was pressured into signing a release form with the promise that all his rights would be paid. He requested that the defendant pay him severance pay and a portion of his outstanding wages.
The defendant’s attorney countered that the plaintiff resigned from the defendant’s workplace on April 30, 2011, that the plaintiff terminated his employment contract not for just cause but because he found a new job, that the plaintiff and other employees received their salaries on time, that there was no question of the plaintiff being sent outside the city outside working hours, that the defendant’s workplace was closed on national holidays and public holidays, that employees at the defendant’s company worked five hours on Saturdays between 09:00 and 18:00 as part of their working hours, that the plaintiff left his job, putting the defendant employer in a difficult position, and that he left his job without complying with the notice period, requesting that the case be dismissed and, as a counterclaim, that the notice compensation be collected from the defendant by the plaintiff.
Based on the evidence gathered and the expert report, the court decided to partially accept the case and dismiss the counterclaim.
The parties’ attorneys appealed the decision.
1-Based on the documents in the file, the evidence gathered, and the legal grounds on which the decision is based, it is 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 concerns whether the case meets the necessary conditions to be filed as an uncertain claim.
Article 107 of Law No. 6100, which entered into force on October 1, 2011, introduced a new type of lawsuit, namely, unspecified claim and determination lawsuits, which were not included in the repealed Law No. 1086 on Civil Procedure.
According to Article 107 of Law No. 6100,
“(1) In cases where it cannot be expected that the amount or value of the claim can be determined precisely and definitively at the time the lawsuit is filed, or where this is impossible, the creditor may file an uncertain claim lawsuit by specifying the legal relationship and a minimum amount or value.
(2) When it becomes possible to determine the amount or value of the claim fully and definitively based on information provided by the opposing party or as a result of investigation, the plaintiff may increase the claim stated at the outset of the case without being subject to the prohibition on expanding the claim.
(3) Furthermore, in cases where a partial performance action may be filed, a declaratory action may also be filed, and in such cases, the existence of a legal interest is presumed.
This article, which was not included in the government bill, was introduced by the Justice Commission of the Grand National Assembly of Turkey and ultimately became law, based on the rationale that it is necessary to ensure that the freedom to seek justice is protected as broadly as possible within the framework of the legal system, thereby eliminating the difficulties encountered by persons seeking justice in cases involving claims whose amount or value cannot be fully determined from the outset.
For a lawsuit to be filed as an uncertain claim lawsuit, the amount or value of the claim in dispute must not be fully and definitively determined by the plaintiff as of the date the lawsuit is filed. The inability to determine must be based on the plaintiff’s inability to determine the amount or value despite exercising due care and diligence, or on an objective impossibility.
The rationale for the article states, “For the creditor to file this type of lawsuit, it must be truly impossible for them to fully and definitively determine the amount or value of the claim, or this must be objectively impossible. If the amount of the lawsuit to be filed is known or can be determined, such a lawsuit cannot be filed. Because, as in every lawsuit, legal benefit will be sought here as well, and in such a case, it cannot be said that there is legal benefit. In particular, taking into account and jointly evaluating the new provisions relating to partial claims, it is unacceptable to resort to this method in cases where the claim can be determined from the outset.” This explanation indicates that if the claim is of a specific or determinable nature, it is not possible to benefit from the opportunities provided by filing an uncertain claim.
It is not possible to make a definitive classification of which cases involve uncertain claims and which involve certain or determinable claims; the outcome must be determined by considering the specific circumstances of each claim in each case.
Article 107/2 of Law No. 6100 provides criteria to guide the resolution of this issue. The aforementioned paragraph stipulates that when it is possible to determine the amount or value of the claim precisely and definitively based on the information provided by the opposing party or as a result of an investigation, the plaintiff may increase the claim stated at the beginning of the case without being subject to the prohibition on expanding the claim. The explanatory memorandum to the article also explains the circumstances under which this can be determined, namely “based on the information and evidence provided by the opposing party or as a result of the examination of evidence and investigation procedures (e.g., as a result of an expert opinion or inspection).”
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 preparation period for filing the lawsuit, and therefore the amount of the claim can only be determined with the submission of information and documents in the possession of the opposing party, the claim should be considered uncertain.
The mere existence of a dispute between the parties regarding the amount of the claim does not mean that the determination of the claim cannot be expected from the plaintiff. What is important is that, objectively, the determination of the claim cannot be expected from the plaintiff. If the mere existence of a dispute between the parties regarding the amount of the claim or the fact that it is disputed is considered sufficient to file a claim for an uncertain claim, then almost all cases would have to be accepted as claims for uncertain claims, which is contrary to the purpose of the law. This is because the case is already being filed due to the existence of a dispute, and the dispute is brought before the court. What matters is whether the plaintiff has the means to specify their claim. Here, it should not be forgotten that the determinability of the claim must also be assessed separately from its provability. If it is objectively possible to determine the claim sought by the plaintiff, but it is not possible to prove the claim that can be determined in the manner prescribed by law (with the evidence at hand), then it cannot be said that an uncertain claim lawsuit will be filed here. This is because determining a claim and proving it are two separate things. The plaintiff may be able to clearly determine the claim they are pursuing; however, they may not always be in a position to prove it. Accepting the contrary could lead to a situation contrary to both the purpose of the law and general principles, such as converting every claim that is difficult to prove into an uncertain claim.
It should be accepted that an uncertain claim lawsuit may be filed even in cases where the determination of the amount of the claim depends on the examination of evidence, expert examination, or other proceedings to be carried out during the investigation phase. However, the fact that an expert examination is conducted in a case is not sufficient for an uncertain claim lawsuit to be filed. If the plaintiff can determine the amount of the claim when filing the lawsuit, even though an expert has been consulted in the case, an uncertain claim lawsuit cannot be filed.
Categorically, it cannot be said that a certain type of case or cases brought by certain individuals are, from the outset, either definite or indefinite claims. In the case of an indefinite claim, the criteria relating to the case must be determined by applying them to the specific circumstances.
In cases where the judge is granted discretion in determining and establishing the amount of the claim (e.g., Turkish Code of Obligations No. 6098, Articles 50, 51, 56), since the claim may become specific as a result of the judge’s discretion, it must be accepted that it is impossible for the plaintiff to determine the amount or value of the claim fully and definitively as of the date the lawsuit is filed. For example, in labor law practice, the Court of Cassation has accepted that if claims for overtime, weekly holiday, national holiday, and general holiday pay are based on witness statements rather than written documents and workplace records, an appropriate discretionary reduction must be made, taking into account the period on which the calculation is based and the amount of the claim. In this case, since the rate of reduction to be made at the judge’s discretion from the amount of the claim calculated based on witness statements is not predetermined, the claim must be considered uncertain.
With Law No. 6100, the possibility of filing a lawsuit for an uncertain claim within the framework described above has been granted, thereby expanding the freedom to seek justice for uncertain claims. In connection with this, the possibility of filing a partial lawsuit without legal benefit has been limited, but not completely eliminated.
Occasionally, it is seen that the exact boundary between the new regulation on uncertain claim lawsuits and partial lawsuits, adopted with Law No. 6100, cannot be determined, and one is used instead of the other. However, the purpose and nature of these two lawsuits are distinct. If the claim is certain or determinable, an uncertain claim lawsuit cannot be filed; however, if the conditions are met, it is possible to file a partial lawsuit.
Considering that the law limits the possibility of filing a partial claim but does not completely eliminate it, it is possible to file a partial claim for specific claims when the conditions are met and there is legal benefit, even if an indeterminate claim cannot be filed. Otherwise, only two options would be available: filing an action for an indeterminate claim or filing an action for a specific claim in full, in which case the provision of Article 109 of Law No. 6100 regarding partial actions could not be applied in practice. This is because, in an action for an indeterminate claim, the lawsuit can be filed by taking advantage of the possibilities offered by the action for an indeterminate claim; if the claim is specific, then only an action for full performance can be filed. However, in accordance with the principle that the legislator does not engage in futile activities, a partial lawsuit can be filed by considering that the aforementioned article regulates partial lawsuits and paying attention to the limitations in the Law.
At this point, it should also be clarified that if the lawsuit is filed as an indeterminate claim lawsuit in the petition without the conditions being met, the lawsuit should be dismissed for lack of legal benefit without giving the plaintiff any time. This is because the Law does not allow such a lawsuit to be filed when it is possible to determine the claim. In such a case, the lawsuit should be dismissed for lack of legal benefit in filing an uncertain claim lawsuit, and no additional time should be granted. This is because the claim is clear here, so it is not possible to grant a period of time by applying Article 119/1-ğ of Law No. 6100; in fact, since an action for an indeterminate claim has been filed when it should not have been, and this deficiency cannot be remedied by granting a period of time, the action should be dismissed for lack of legal interest.
The legal interest here is not a legal interest that will be completed at a later date. This is because a legal interest that did not exist at the time the lawsuit was filed, in a situation where this is clearly known to the court, is not a legal interest that will be completed. Accepting the contrary would mean allowing the plaintiff to change the outcome of the claim, which is actually clear, by granting a period of time and providing the plaintiff with additional opportunities to secure a legal interest that does not exist, which is not possible in terms of procedure and would also violate the principle of equality between the parties. Furthermore, if a minimum amount is indicated 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 indefinite claim or a partial lawsuit for a definite claim, then the outcome of the claim is not clearly stated as required by Article 119/1-ğ of Law No. 6100. If the claim, the type of claim, and the nature of the lawsuit are not clearly understood, and if the claim is ambiguous, the plaintiff should be given a one-week deadline, as required by Article 119/2 of the same Law, to specify whether the claim is an uncertain claim lawsuit or a partial lawsuit. After this period, the procedure should be followed according to the plaintiff’s explanation of the claim. If the claim is explained by the plaintiff as an action for an indefinite claim but does not actually meet the conditions for an action for an indefinite claim, then the above procedure should be followed, and the case should be dismissed for lack of legal interest. If, after clarification, the claim meets the conditions for an indeterminate claim, the case should be conducted and decided according to the results of that case; if the claim meets the conditions for a partial claim, it should be conducted and decided according to the results of a partial claim (see our Chamber’s decision dated December 31, 2012, case no. 2012/30463, decision no. 2012/30091). The accumulation of claims, as defined in Article 110 of Law No. 6100, refers to the plaintiff asserting multiple independent principal claims against the same defendant in the same complaint. (objective joinder of actions), since it is accepted that there are as many lawsuits as there are claims, and pursuant to Article 297/2 of the same Law, a separate ruling must be made for each claim. Therefore, in this case, it will be necessary to assess separately for each claim whether the claims asserted in the statement of claim constitute an uncertain claim.
As a result of all these explanations, it should be noted that, as a rule, it is not correct or possible to determine claims arising from labor law as definite or indefinite claims from the outset. For this reason, the possibility of filing an indefinite claim in labor law depends on the existence of the necessary conditions for filing such a claim. If these conditions exist, an indefinite claim can be filed in labor law; otherwise, it cannot. The same applies to partial claims.
In light of the above explanations and considering the specific circumstances of the case at hand, the assessment regarding the claim for an indeterminate amount is as follows:
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 public holiday claims, although the plaintiff can determine how many hours of overtime he worked per week and on which public holidays he worked, he is not in a position to know what percentage of the calculated amount the judge will deduct at his discretion. For this reason, overtime and public holiday claims can be the subject of an uncertain claim lawsuit.
Regarding the severance pay in dispute, as clearly understood from the content of the claim, the plaintiff can determine the length of service, the last salary paid, and the amount of monthly salary he claims he should receive. The monthly salary to be used as the basis for calculating the severance pay and any additional money or social benefits that can be measured in monetary terms can also be determined. In this case, severance pay is not an uncertain claim. Since the claims in question are in fact determinable claims and cannot be the subject of an indeterminate claim lawsuit, the lawsuit should have been dismissed on procedural grounds due to the absence of legal interest in terms of severance pay. Therefore, the decision rendered on the merits is erroneous and requires reversal.
3-As explained above, since it is understood that the claims for overtime and public holiday pay are claims that can be subject to an uncertain claim lawsuit and that the plaintiff’s attorney has filed a claim by initiating an uncertain claim lawsuit; in an uncertain claim lawsuit, since the statute of limitations period for the entire claim is interrupted by the filing of the lawsuit, it was not appropriate to consider the statute of limitations defense against the amendment of the claim as an amendment pursuant to Article 107/2 of Law No. 6100. Therefore, it was incorrect to consider the increase in the claim as a rectification and to take into account the statute of limitations defense against the rectification. Since the amounts claimed in the request for increase in the claim are not subject to the statute of limitations, it was erroneous to reach a conclusion without considering that the judgment should be based on these amounts, and this requires reversal.
CONCLUSION: The judgment was REVERSED for the reasons stated above, and it was decided by majority vote on January 20, 2016, that the advance appeal fee would be refunded to the relevant party upon request.
Dispute: Whether the conditions necessary for a lawsuit regarding a labor claim to be filed as an “uncertain claim lawsuit” are met; whether an uncertain claim lawsuit can be the subject of a partial lawsuit; whether the legal benefit condition regarding the type of lawsuit is a condition that can be fulfilled later, when the court concludes that the conditions for filing an uncertain claim lawsuit have not been met, despite the lawsuit being filed as an “uncertain claim lawsuit.”
As is known, Article 107 of the Code of Civil Procedure No. 6100, which entered into force on October 1, 2011, introduces the concept of “uncertain claim lawsuit,” a new type of lawsuit not included in the repealed Law No. 1086, and accepts that this lawsuit may also be filed as a “declaratory judgment lawsuit.” According to the aforementioned Article 107, the plaintiff may file an action for an indeterminate claim by specifying the legal relationship and a minimum amount or value in cases where it cannot be expected or is impossible to determine the amount or value of the claim “fully and definitively” as of the date the action is filed. Once the opposing party’s information and/or documents or the results of the investigation enable the amount or value of the claim to be determined fully and definitively, the plaintiff may increase the amount claimed in the petition without being subject to the prohibition on expanding the claim. In addition, pursuant to the provisions of the aforementioned article, the plaintiff may also file an action for determination instead of an action for performance. In summary, if the conditions for filing an action for an indeterminate claim are met, the plaintiff may file an action for an indeterminate claim (action for performance) within the meaning of the first paragraph of Article 107, or may also file a declaratory action (Article 107/3) or a partial action (Article 109).
Although not included in the government bill, the Justice Commission of the Grand National Assembly of Turkey amended the relevant article of the law; essentially, it aims to protect the rights of persons who are forced to file a lawsuit to obtain a claim whose amount or value cannot be fully determined in advance, particularly with regard to the statute of limitations on the claim and the starting date of interest. Accordingly, based on the legal provision, in order for an action for an uncertain claim to be filed, the amount or value of the claim in dispute must not be “fully and definitively” determined by the plaintiff as of the date the action is filed. However, in light of the explanations in the rationale for the article, it can be said that this inability to determine must be based on objective conditions. In other words, even if the plaintiff has sufficient legal knowledge and the ability to perform calculations, it should not be objectively expected of them to determine the amount or value of the claim completely and definitively without a trial. In this regard, it is seen that the provision of Article 107 mentioned above is important both for a clearer understanding of the criterion of objectivity and for determining the course of action that the plaintiff can follow once the condition of “uncertainty” ceases to exist.
Regarding how the conditions for uncertain receivables lawsuits and, in this context, the element of objectivity should be understood in lawsuits concerning employee receivables:
As is known, the obligation to prepare documents relating to the rights and obligations under labor and social security law between the employee and the employer and to send them to the relevant institution in accordance with the legislation is essentially an obligation of the employer (Labor 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 are completely unrelated? Contrary to the majority opinion of the Chamber, in our view, given the phrase “fully and definitively” in the first paragraph of Article 107 and the clear provision of the second paragraph, it does not seem possible to answer this question in the affirmative. Whether due to the plaintiff’s lack of information and expertise or the complexity of the transaction, it is certainly not correct to say that the claim is uncertain in every case where an account statement is required. However, it must be accepted that in cases where the complaint alleges that the claim cannot be determined “fully and definitively” due to the inability to access the information and documents held by the opposing party, and where this is substantiated, it is possible to file a lawsuit for an uncertain claim.
In the majority opinion of the Chamber, on the one hand, it is emphasized that certain types of cases or cases filed by certain individuals cannot be categorically described as definite or indefinite claims from the outset; on the other hand, it is argued that claims such as seniority and notice compensation and annual leave entitlements are “determinable” and therefore cannot be the subject of an uncertain claim, which we believe creates a contradiction. This is because, despite the lack of any legal basis, concluding that an uncertain claim cannot be filed on the grounds that the claim is determinable is not a correct solution in light of the phrase “fully and definitively” in the legal provision. Therefore, if the plaintiff can concretely demonstrate in their petition the reasons why they cannot fully and definitively determine the amount or value of the claim, the type of claim should be irrelevant for the purpose of filing the case as an uncertain claim.
To make the issue more concrete:
In a petition for a claim for seniority and notice compensation and annual leave pay, it is alleged that the employee worked at the workplace for ten years with a monthly salary of 1000 TL and did not use his annual leave for the last year, and an uncertain claim lawsuit was filed; however, assuming that no reason was given as to why the claim is uncertain, in our opinion, it does not seem possible for such a lawsuit to be accepted as an unspecified claim lawsuit. However, the plaintiff claims that some periods of his approximately ten years of work were performed without insurance; that some of his work was reported incompletely to the Social Security Institution and from different workplaces of the defendant; that part of his wages were paid in cash; that his annual leave was granted piecemeal, scattered, and incompletely; and that he has no documentation regarding the transportation, meal, and clothing allowances provided by the workplace; that in addition to the tips distributed, the records related to premium and bonus receivables, as well as the annual leave record book, could not be obtained. Is it possible for the court to conclude such a case as an uncertain claim 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 uncertain claim case. According to the aforementioned opinion, since the provability of the case is a completely different matter, it must be accepted that the conditions for filing an uncertain claim case are not met even in this case. However, the wording of Article 107 and the very clear explanation 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 stated solution on the grounds that the legislator’s view is in line with it. It is unacceptable to interpret the law in a manner that clearly contradicts the text of the law based on the rationale of the law or the presumed intention of the legislator.
Furthermore, in a case concerning an uncertain claim for seniority and notice compensation and annual leave pay, the defendant employer stated in its response that the case was rightly filed as a claim for an uncertain amount; that the employee was indeed forced to work without insurance for a period; that wages could vary from month to month; a fixed wage had not been paid for a long time; they submitted documents related to transportation and meal allowances as attachments; therefore, the court should also desire to determine the plaintiff’s claims in full. In such a case, can the local court rule that the case cannot be considered an uncertain claim? In our opinion, in such a case, it would not be correct to dismiss the case on the grounds of lack of legal benefit by referring to the fact that “the claim can be determined approximately” or by mentioning the difference in the law of evidence; rather, the existence of the conditions for an uncertain claim lawsuit should be accepted.
On the other hand, Article 114 of Law No. 6100 establishes that the plaintiff must have a legal interest in bringing the lawsuit as a condition for the lawsuit; in declaratory actions concerning uncertain claims, it is also presumed that the plaintiff has a legal interest (Article 107/3). In our opinion, when an uncertain claim lawsuit is filed, if it is debatable whether the claim is certain, it would be appropriate, in terms of clarifying the issue and determining whether there is a legal interest, to apply the second and third sentences of the second paragraph of Article 115 and grant the plaintiff a definite period of time, both for the sake of procedural economy and to prevent the victimization of individuals.
For the reasons explained above, we do not concur with the Chamber’s (2) number 2 reversal opinion in terms of both reasoning and substance. 20.01.2016