There Is No Legal Basis For Treating A Worker As If They Had Just Started A New Job By Disregarding Their Previous Work Experience Prior To Being Hired.
Republic of Turkey
Supreme Court of Appeals
General Assembly of Civil Law
Case No.: 2018/7-179
Decision No.: 2018/683
Date of Decision: 4.4.2018
>>Employee Claims Case, CREATING A QUALITATIVE DIFFERENCE BETWEEN WORK PERFORMED BEFORE AND AFTER BEING HIRED OR TREATING WORK PERFORMED BEFORE BEING HIRED AS IRRELEVANT AND TREATING THE PLAINTIFF AS HAVING STARTED A NEW JOB – There is no legal basis for treating the worker as a new employee who is economically dependent on the employer – IT IS NOT POSSIBLE TO CONSIDER THE FACT THAT THE EMPLOYEE, WHO IS ECONOMICALLY DEPENDENT ON THE EMPLOYER, DID NOT FILE A LAWSUIT DURING THE PERIOD OF EMPLOYMENT AS BEING AGAINST THE EMPLOYEE.
4857/m.5,29/7,53/3,60
SUMMARY: The lawsuit concerns the collection of labor claims. Although the fact that the plaintiff was employed in similar jobs throughout the year by being hired as a permanent employee does not change the nature of his previous work, it is clear that legally disregarding this work would result in a violation of the principle of equality. Moreover, there is no legal basis for creating a qualitative difference between the work performed before being hired and the work performed after being hired, or for treating the plaintiff as if they had just started a new job by disregarding their work prior to being hired. On the other hand, the fact that the employee, who is economically dependent on the employer, did not file a lawsuit during the period of employment cannot be evaluated to the detriment of the employee. In light of all these findings and precedent decisions, it was inappropriate to dismiss the case with a written justification, when the plaintiff’s work prior to being hired should have been included in the length of service to determine his rank and grade and, if applicable, his difference in pay should have been ruled upon.
CASE: Following the trial concerning the “labor claims” between the parties, the Samsun 2nd Labor Court dismissed the case with its decision dated 04.07.2014 and numbered 2014/55 E.-2014/449 K. Upon the plaintiff’s attorney’s request for an appeal review, the Supreme Court of Appeals 7th Civil Chamber of the Supreme Court of Appeals, in its decision dated 15.12.2014 and numbered 2014/18320 E.-2014/22650 K., ruled that
“…The plaintiff’s attorney stated that his client was working as a temporary worker when he was was transferred to permanent staff in 2001 and continued to work in this capacity until retirement. However, the attorney claimed that the adjustment was incorrect because the periods worked prior to the date of transfer to permanent staff were not taken into account. The attorney requested that the degree and grade be determined by taking into account the periods worked as a temporary worker and that the resulting difference in wages due to the incorrect adjustment be ruled upon. .
The defendant’s representative argued that the plaintiff’s claims were time-barred and that, according to the Collective Labor Agreement and Additional Protocols for the relevant period, the plaintiff’s adjustment had been made and he had been hired, and that it was not possible for the plaintiff to benefit from the provisions of the Collective Labor Agreement after his retirement, requesting that the case be dismissed.
The court ruled that the plaintiff tacitly accepted the new working conditions upon being transferred to the permanent staff and that his request for wage adjustment for the past period after working under the said conditions for many years was incompatible with the principles of labor law. The court also ruled that the plaintiff could not benefit from the regulation made in the Collective Labor Agreement in 2013 because he had retired before the regulation was made. Pursuant to the protocol dated October 26, 2000, signed between the employer and the Turkish Labor Union, it was clearly and specifically stated that temporary workers in the plaintiff’s position would be transferred to permanent staff based on their current wages. Therefore, the court ruled to dismiss the case on the grounds that the plaintiff’s retroactive claims were unfounded.
Work performed in workplaces where work is only carried out during a specific period of the year or where work is carried out throughout the year but intensifies during specific periods of the year can be defined as seasonal work. These periods may be long or short depending on the nature of the work. Work that is not suitable for employing the same number of workers at all times and where, depending on the nature of the activity carried out at the workplace, workers work intensively for certain periods each year but their employment contracts require a break during other periods of the year until the start of the next year’s activity period is considered seasonal work.
Seasonal employment contracts may be established for a fixed term or for an indefinite term in accordance with the provisions of Article 11 of the Labor Law No. 4857. A fixed-term employment contract made for a single season automatically expires at the end of the season, and in this case, the worker is not entitled to notice and severance pay.
Conversely, if a fixed-term employment contract has been concluded between the employee and the employer for seasonal work and the employee has continued to work under successive seasonal employment contracts in subsequent years, the employment contract will acquire an indefinite-term nature in accordance with the last paragraph of the aforementioned article.
Considering the scope of the file; initially, on the grounds that the work between the parties was seasonal in nature; it is understood that the plaintiff’s insurance premiums were paid at varying dates and durations each year, and that the insurance premiums continued to be paid throughout the year by hiring the plaintiff on a permanent basis without changing the work he performed. When the above explanations regarding seasonal work are evaluated together with the aforementioned finding, the fact that the defendant administration employed the plaintiff and his colleagues in similar jobs throughout the year by hiring them does not change the nature of their previous seasonal work, but disregarding it legally would lead to unfair results. Moreover, these contracts, which were renewed consecutively, have become indefinite in duration; there is no legal basis for creating a qualitative difference between the work performed before being hired as permanent staff and the work performed after being hired as permanent staff, or for treating the plaintiff and his colleagues as if they had just started a new job by disregarding their work prior to being hired as permanent staff.
Furthermore, although the court referred to the protocol dated October 26, 2000, signed between the defendant administration and the union of which the plaintiff is a member, it should not be forgotten that a Collective Bargaining Agreement can only extend the rights granted to employees under the Labor Law in favor of the employee, and that regulations to the contrary are invalid. For this reason, it is not possible to recognize the validity of a protocol that produces results to the detriment of the employee.
Although it is bound by the general principles of the Law of Obligations, the fundamental reason for the emergence of Labor Law as a separate (special) branch of law is that it regulates legal relationships between parties that are unequal in terms of their structure. For this reason, it cannot be assumed that an employee who is dependent on the employer and whose economic future depends on the employer has tacitly accepted the existing practice after being hired. Likewise, the freedom to seek rights is constitutionally guaranteed, and the time of exercising this right cannot be evaluated to the detriment of the right holder.
The acceptance decisions issued by the Mersin Labor Courts, which are of a similar nature, are the decisions numbered 2014/131…140, 306…313, 386, 496…500, 757… 761, the acceptance decisions issued by the Şanlıurfa Labor Courts are in line with our Chamber’s decisions numbered 2013/5838…6077, and the acceptance decisions issued by the Antalya Labor Court are in line with our Chamber’s decisions numbered 2014/8391… 8399, issued by the Artvin Civil (Labor) Courts, have been ratified and finalized by our Chamber’s decisions numbered 2014/10516…10530.
In light of all these findings and precedent decisions, it was inappropriate to dismiss the case with a written justification, as the plaintiff’s work prior to being transferred to the permanent staff should have been included in the calculation of his/her seniority and grade, and any difference in salary should have been awarded.
The case was overturned on these grounds and remanded for retrial, at the end of which the court upheld its previous decision.
After review by the General Assembly of the Court of Appeals, it was determined that the appeal against the decision to uphold the previous ruling was filed within the time limit, and after reviewing the documents in the case file, the following decision was reached:
DECISION: The case concerns the collection of labor claims.
The plaintiff’s attorney claimed that the plaintiff’s rank and grade were incorrectly determined because the period during which he worked as a seasonal worker was not taken into account when he was hired as a permanent employee, and requested the collection of a portion of the difference in labor claims, subject to the reservation of rights to any excess, by determining his rank and grade.
The defendant’s attorney defended the dismissal of the case.
During the proceedings, due to the termination of the legal personality of the Samsun Provincial Special Administration under Law No. 6360, the case was pursued by the attorney for the Samsun Metropolitan Municipality, to whom the file was transferred by the Transfer, Liquidation, and Distribution Commission.
The Court reviewed the decisions issued by the 7th and 22nd Chambers of the Court of Cassation. After evaluating the decisions issued by the 7th and 22nd Civil Chambers of the Court of Cassation, it was determined that the plaintiff was aware of the conditions for transfer to the permanent employee roster pursuant to the provisions of the Protocol dated 26.10.2000, that the procedure was carried out with his consent, and that he could not claim a difference in salary after more than ten years had passed without taking into account the provisions of the Protocol. In 2013, a different regulation was introduced with Article 5 of the Collective Labor Agreement Framework Agreement Protocol, and this regulation does not suggest the principle of interpretation in favor of the plaintiff. In fact, making such a claim after so many years has passed is not in accordance with the rules set forth in Article 2 of the Turkish Civil Code. Under the Protocol, if the plaintiff does not accept the Protocol, the employment contract will be terminated by the defendant employer with all legal rights paid except for the notice indemnity under Article 5 of the Protocol. The plaintiff did not choose this option and therefore cannot make a claim on this basis later. The established case law and the decision of the General Assembly of the Court of Appeals regarding the assessment of the entire period of employment in determining seniority, as well as the practice in this regard, do not give rise to the claims in question. The administration’s acceptance of the collective labor agreement in 2013 and its action in this regard do not grant the plaintiff such a right. since the plaintiff had retired long before leaving the job, the status and conditions of each contract period were different, and pursuant to Article 19 of the Trade Unions and Collective Labor Agreements Law No. 6356, a worker whose union membership has ended cannot benefit from the conditions of adjustment, and therefore, it is not possible to make an interpretation in favor of the employee, the case was dismissed.
Upon the plaintiff’s attorney’s appeal, the judgment was overturned by the Special Chamber with the decision indicated in the heading section.
In addition to the previous reasons, the Local Court ruled to uphold the decision, considering that although there is a difference of opinion between the 7th and 22nd Civil Chambers of the Court of Cassation on this issue, this dispute has not yet been resolved and has not been settled by the General Assembly of the Court of Cassation.
The decision to uphold the ruling was appealed by the plaintiff’s attorney.
The dispute brought before the General Assembly of the Court of Appeals through the appeal process centers on whether the plaintiff employee’s work as a seasonal worker prior to being transferred to permanent staff should be included in the calculation of his/her length of service for the purpose of determining his/her rank and grade as of the date of transfer to permanent staff, and whether the plaintiff is entitled to any difference in pay based on the outcome of this determination.
To resolve the dispute, it is first necessary to clarify the concept of seasonal work.
As is known, although the working conditions of seasonal workers are regulated by labor laws in our labor law legislation, there is no precise definition of seasonal work, nor is it clearly stated which jobs are seasonal.
Provisions regarding seasonal work are found in Articles 29/7 and 53/3 of Labor Law No. 4857; Article 12 of the Regulation issued based on Article 60 of the same Law; and Article 4/f of Law No. 394 on Weekly Holidays.
These provisions do not define seasonal work, but they define workplaces where work is performed during a certain period of the year and not during other periods or where work is reduced, and stipulate that seasonal workers are not entitled to annual leave but may be covered by collective bargaining agreements.
Based on the above regulations, work performed in workplaces where work is concentrated in a specific period of the year can be defined as seasonal work.
Indeed, Article 2/B of the repealed Labor Law No. 3008 defines a “workplace that is fully or excessively active during any period of the year and is completely inactive or reduces its activity during other periods” as a seasonal workplace.
Seasonal work is also defined in the literature as work where activity intensifies during certain periods of the year, decreases or ceases entirely during other periods, and this situation repeats itself during certain periods of the year.
These periods may be long or short depending on the nature of the work. Jobs that are not always suitable for employing the same number of workers and where workers work intensively for certain periods each year depending on the nature of the activity carried out at the workplace, but where the employment contracts require a break until the start of the next year’s activity period, may be considered seasonal work.
Indeed, seasonal work is also addressed in the decisions of the General Assembly of the Supreme Court dated November 13, 2013, No. 2013/22-1170 E.- 2013/1571 K.; March 7, 2012, No. 2011/9-755 E.- 2012/117 K. and November 30, 2011, No. 2011/9-596 E.-2011/725 K.
It should be noted that the necessity of carefully examining whether the work is seasonal or not, depending on the nature of the work and the workplace, should not be overlooked.
On the other hand, another issue that needs to be examined is the “duty of equal treatment.”
The principle of equal treatment applies to all areas of law and, in terms of labor law, is a debt recognized by contemporary labor law and generally based on the principle of fairness, which obliges employers to treat employees working at the workplace equally and to apply equal working conditions to employees performing work of equal value (Çelik, N.: Labor Law Lessons, Istanbul 2009, 22nd Edition, p.:177).
The principle of equality is generally regulated in Article 10 of the Constitution of the Republic of Turkey No. 2709. According to the first paragraph of the aforementioned article, “Everyone is equal before the law without discrimination on grounds such as language, color, gender, political opinion, philosophical belief, religion, sect, and similar reasons.”
Similarly, the second paragraph added to Article 10 of the Constitution by Law No. 5170 dated 07.05.2004 states that “Women and men have equal rights. The state is obliged to ensure that this equality is realized.”
This constitutional principle is expressed in Article 5 of the Labor Law No. 4857 in labor law.
Article 5 of Law No. 4857, titled “Principle of equal treatment,” states:
“Discrimination based on language, race, gender, political opinion, philosophical belief, religion, sect, or similar reasons is prohibited in employment relationships.
Unless there are compelling reasons, the employer may not treat part-time workers differently from full-time workers or fixed-term workers differently from indefinite-term workers.
Unless biological or job-related reasons make it necessary, the employer may not treat an employee differently, directly or indirectly, on the basis of gender or pregnancy in the conclusion, establishment, implementation, or termination of an employment contract.
Lower wages may not be agreed upon on the basis of gender for the same or equivalent work.
The application of special protective provisions due to the employee’s gender does not justify the application of a lower wage.
If the provisions of the above paragraph are violated in the employment relationship or upon its termination, the employee may claim appropriate compensation equivalent to up to four months’ wages, in addition to any other rights they have been deprived of. The provisions of Article 31 of Trade Unions Law No. 2821 remain reserved.
Subject to the provisions of Article 20, the employee is responsible for proving that the employer has acted contrary to the provisions of the above paragraph. However, if the employee presents a situation that strongly indicates the possibility of a violation, the employer is responsible for proving that no such violation exists.
The obligation to treat employees equally is, as a rule, an obligation that arises after the employment relationship is established and prevents the employer from engaging in arbitrary practices (Yıldız, Gaye B.: İşverenin Eşit İşlem Yapma Borcu [The Employer’s Obligation to Treat Employees Equally], Ankara 2008, p. 68).
Accordingly, the employer is generally obligated to treat employees working at the workplace equally and to apply equal working conditions. The employer is under an obligation not to treat employees differently without a valid reason and to provide them with equal social benefits and financial advantages, and there is a mandatory requirement to ensure the obligation of equal treatment in relation to public order.
However, the obligation to treat employees equally does not mean that the employer must treat all employees absolutely equally.
The principle of equality cannot be applied to employees subject to different working conditions. Distinctions can be made between such employees. However, this must be based on the nature of the work and objective criteria (Çelik, op. cit., p. 179).
The obligation to treat equally applies to employees of the same nature. The employer may create different working conditions based on objective reasons such as the work performed by the employee, their expertise, education, seniority, or subjective reasons such as diligence, ability, and merit.
In light of the above explanations, when the specific case is evaluated; it is accepted that the plaintiff was employed for part of the year prior to February 2, 2001, as the work was seasonal. that the plaintiff, who was transferred to permanent staff on February 2, 2001, worked continuously at the workplace affiliated with the Village Services Directorate after that date, and that insurance premiums continued to be paid for the entire year by transferring him to the staff without changing the work performed, The Provincial Rural Services Directorate was closed by Law No. 5286 and the workplace was transferred to the Samsun Provincial Special Administration. With Law No. 6360, the legal personality of the Samsun Provincial Special Administration was terminated and the file was transferred to the Samsun Metropolitan Municipality by the Transfer, Liquidation and Distribution Commission.
In this case, although the plaintiff’s employment in similar jobs throughout the year by being hired as a permanent employee does not change the nature of his previous work, it is clear that legally disregarding this work would result in a violation of the principle of equality.
Moreover, there is no legal basis for creating a qualitative difference between the work performed before being included in the permanent staff roster and the work performed after being included in the roster, or for treating the plaintiff as if they had just started a new job by disregarding the work performed before being included in the roster.
On the other hand, the fact that an employee working in economic dependence on the employer did not file a lawsuit during the period of employment cannot be evaluated to the detriment of the employee.
Indeed, the General Assembly of the Court of Appeals ruled on November 11, 2015, 2015/7-1115 E.-2015/2541 K.; June 29, 2016, 2016/22-1115 E.-2016/893 K.; May 3, 2017, No. 2017/22-2094 E.-2017/910 K.; December 13, 2017, No. 2016/9 (7)-100 E.-2017/1688 K. and December 13, 2017, No. 2016 9 (7)-594 E.-2017/1694 K.
On the other hand, although the provisions of Law No. 6360 terminated the legal personality of the defendant Samsun Provincial Special Administration during the trial phase, and the case was pursued by the representative of Samsun Metropolitan Municipality, to whom the file was transferred by the Transfer, Liquidation, and Distribution Commission, it is not correct to refer to Samsun Provincial Special Administration as the defendant in the title of the decision. this error is a material error that can be corrected in situ and therefore does not constitute grounds for reversal; it is merely noted.
Therefore, in accordance with the mutual claims and defenses of the parties, the minutes and evidence in the file, and the compelling reasons explained in the reversal decision, it is necessary to comply with the Special Chamber’s reversal decision, which was also adopted by the General Assembly of the Court of Appeals. Persisting with the previous decision is contrary to procedure and law.
For this reason, the decision to persist must be reversed.
CONCLUSION: The appellant’s appeal is accepted, and the decision to uphold the ruling is REVERSED for the reasons stated in the Special Chamber’s reversal decision. If requested, the appeal fee shall be refunded to the payer. The decision is final and binding. It was unanimously decided on 04.04.2018.