Is It Mandatory To Hear Payroll Witnesses In Service Determination Cases?
A service determination lawsuit is a lawsuit filed by employees who work without insurance coverage in order to obtain insurance coverage for the period of time they worked without insurance.
Pursuant to Article 86/7 of the Social Insurance and General Health Insurance Law No. 5510; If the employer fails to provide the monthly premium and service certificate or the summary and premium service declaration, or if the insured persons cannot be identified by the Institution where they worked, and if they can prove their employment by applying to the labor court within five years starting from the end of the year in which their services were rendered and obtain a court ruling, the total monthly earnings and the number of days for which premiums are payable specified in the court ruling shall be taken into account.
In service determination cases, the plaintiff employee is responsible for proving that they worked at the workplace in question in previous years. The plaintiff can prove this with any type of evidence. One of the most important pieces of evidence in service determination cases is witness testimony.
Although anyone who can prove the existence of the work can be presented as a witness, the Court of Cassation case law requires that payroll witnesses (other employees who were reported to the Social Security Institution during the same period) who worked at the same workplace during the period claimed to have been worked be heard, or that persons who worked at workplaces adjacent to the workplace during the period for which the work is to be determined be heard.
In service determination cases, persons who worked with the plaintiff during the period in question and are registered on the employers’ payrolls, as well as other employers in the same region who perform similar work and persons who have been on the payrolls of these employers, should be identified, and their information and observations should be sought to the extent sufficient to form an opinion.
Relevant Supreme Court Decision:
Supreme Court of Turkey, 21st Civil Chamber, E. 2009/4317, K. 2010/3846, K.T. 06.04.2010
“The plaintiff requested a decision to determine their work performed at the defendant employer’s workplace between October 1, 2003, and August 14, 2006, which was not reported to the Institution.
As stated in the court’s decision, the request was denied.
Upon appeal of the judgment by the plaintiff’s attorney, it was determined that the appeal was filed within the time limit, and after reviewing the documents in the file with the report prepared by the Investigating Judge, the matter was considered and the following decision was reached.
DECISION
1- Based on the documents in the file, the evidence gathered, and the legal grounds on which the ruling is based, the plaintiff’s appeals outside the scope of the following clause are rejected.
2- The case is based on the plaintiff’s claim that he worked continuously at the defendant employer’s workplace between October 1, 2003, and August 14, 2006, and concerns the determination of his employment between October 1, 2003, and February 23, 2005, which was not reported to the Institution.
The court ruled to dismiss the case, finding that the witness statements and the insurance period in the service record were consistent and that the plaintiff failed to prove that he worked at the defendant’s workplace before February 23, 2005.
The plaintiff’s work at the workplace was partially reported to the Institution based on employment registration forms, monthly and quarterly payrolls, and premiums were paid accordingly. On the other hand, the employment registration form and payrolls are evidence that the plaintiff’s work at the workplace was intermittent. It is indisputable that the contrary of this presumption must be proven with equivalent documents. In such cases, credible and sufficient evidence establishing the fact of employment must be sought, and in such cases based on public order, the judge must, as part of their duty, directly expand the investigation to determine whether the conditions for insurance coverage have been met. This aspect is emphasized in the decisions of the General Assembly of the Court of Cassation dated September 16, 1999, 1999/21-510-527, June 30, 1999, 1999/21-549-555, February 5, 2003, 2003/21-35-64, October 15, 2003, No. 2003/21-634-572, November 3, 2004, No. 2004/21-480-579 and No. 2004/21-479-578, November 10, 2004, No. 2004/21-538, and October 1, 2004, No. 2004/21-629.
The investigation revealed that the defendant workplace reported 306 days in 2005 and 210 days in 2006. Witness Günay, who stated that the plaintiff left on 15.08.2006, is the plaintiff’s neighbor. Witness Morgül is the plaintiff’s brother and they are not payroll witnesses. Payroll witnesses Emine and Lütfi did not provide information about the plaintiff’s start date. Payroll witness Safiye stated that the plaintiff started work in 2005. The witness statements contradict each other and are not of a nature that can be relied upon as a basis for a ruling.
The task at hand is to evaluate all the evidence together, referring to the statements of other payroll witnesses, taking into account that there were more than one employee in the payrolls for the 2001-2005 period provided by the defendant workplace in the file, and to make a decision based on the outcome.
Therefore, the plaintiff’s appeals for review aimed at these aspects should be accepted, and the judgment should be overturned.
CONCLUSION: The judgment is REVERSED for the reasons stated above, and the appeal fee shall be refunded to the plaintiff upon request. This decision was made unanimously on April 6, 2010.