About The Effect Of Tipping On Insurance
10th Civil Chamber 2021/1434 E. , 2021/12473 K.
“Case Law Text”
Regional Court of Appeal : … Regional Court of Appeal 11th Civil Chamber
No : 2020/551-2020/1945
Court of First Instance : … 8th Labour Court
The lawsuit is related to the claim for determination of earnings based on premium.
Upon the appeal filed by the defendant Institution’s attorney against the decision of the Court of First Instance to accept the case on the grounds stated in the judgement, the 11th Civil Chamber of the … Regional Court of Appeal decided to reject the appeal on the merits.
Upon the appeal of the decision rendered by the 11th Civil Chamber of the … Regional Court of Appeal, by the representative of the defendant Institution, after it was understood that the request for appeal was in due time and after the report prepared by the Examining Judge … and the papers in the file were read, the matter was considered and the following decision was determined.
I-REQUEST
The plaintiff’s attorney claimed that the plaintiff worked as a waiter at the defendant workplace between 20.11.2012-02.01.2014 without interruption and continuously, that his premiums were paid as if he worked with a net wage of 1.272,73 TL, that he signed the payrolls under the pressure of losing the job, whereas the tips he received between 2.000TL-3.000TL per month should also be reflected in the payrolls, and requested that the underpaid insurance premiums be corrected as 3.272,73 TL and that his services be combined with his other services.
II-RESPONSE
The defendant employer’s representative defended the dismissal of the lawsuit, stating that the plaintiff worked with a net wage of 1.272,73 TL, that overtime, holiday and general holiday wages were paid, and that the wages were paid from the bank as much as they appear on the payrolls.
The defendant Institution’s representative requested the dismissal of the lawsuit.
III-COURT DECISION
A-FIRST INSTANCE COURT JUDGEMENT
The Court 1-Accepted the lawsuit and decided that the plaintiff;
-November 2012 SPEK amount is 447,39 TL,
-December 2012 SPEK amount is 4.473,36 TL,
-January 2013 SPEK amount is 4.874,52 TL,
-February 2013 SPEK amount is 4.755,83 TL,
-March 2013 SPEK amount is 4.755,83 TL,
-April 2013 SPEK amount is 4.874,52 TL,
-May 2013 SPEK amount is 4.993,22 TL,
-June 2013 SPEK amount is 4.755,83 TL,
-July 2013 SPEK amount is 4.856,62 TL,
-August 2013 SPEK amount is 5.384,36 TL,
-September 2013 SPEK amount is 4.879,61 TL,
-October 2013 SPEK amount is 5.510,54 TL,
-November 2013 SPEK amount is 4.879,61 TL,
-December 2013 SPEK amount was determined as TL 4.879,61.
B- REGIONAL JUDICIAL COURT DECISION
The first decision regarding the dismissal of the lawsuit … With the decision of the 11th Civil Chamber of the Regional Court of Appeal dated 15/12/2020 and numbered 2020/551-2020/1945 E.K. “In the concrete case, although it was decided to reject the request for the determination of the earnings based on the premium on the grounds that the tip is not a wage given by the employer, it is accepted by judicial precedents that the tip can also be subject to evaluation as an element of earnings based on the premium, especially if it is determined that it is collected by the employer and distributed to the employees, according to the above principles.
(Y.10th HD’s 2016/365-2637 E.K., 2015/15981-17779 E.K., 2016/3716-4231 E.K.). In the light of the above-mentioned material and legal explanations, it is contrary to the procedure and merits to make a decision without collecting and evaluating the evidence on the merits of the case”, and the proceedings were continued by registering the case under the 2019/7 principle.
The Regional Court of Justice decided to reject the appeal application of the defendant Institution’s attorney against the second decision on the acceptance of the case on the grounds that “In the examination made by considering the reasons for appeal from the trial conducted by the first instance court and the entire file scope, in the face of the written evidence beginning and the witness statements confirming this, the court’s approach to the court’s acceptance of the case and the determination of the plaintiff’s earnings based on insurance premiums is appropriate”.
IV-APPEAL AND REASONS FOR APPEAL
The defendant SSI attorney stated that the court made a decision based on the expert report, which was not suitable for audit, without conducting a comprehensive research and examination, without collecting the evidence sufficiently, and requested the decision to be reversed on appeal.
V-RELEVANT LEGAL RULES AND REVIEW
The legal basis of the lawsuit is Article 77 of the Law No. 506 and Article 80 of the Law No. 5510. The said articles regulate how to determine the earnings based on the premium, and the concept of “wages” includes elements such as overtime wages, week holiday wages, national holidays and general holiday wages as well as the actual wage. In order for the wages determined by the administrative or judicial authorities to be taken as a basis for premium calculation, it is not sufficient to be entitled to such earnings, it is required that the payment is made to the worker (insured) after the court decision in the dispute between the parties regarding labour receivables, in this case,
Taking into account that the deduction of the premiums of the earnings in the form of wages entitled by the judicial decision from the payment made to the insured during the execution of the insured’s share of the premiums does not remove the employer’s premium obligation to the Institution, it should be included in the base of the premium based earnings of the month in which the payment is made, and if the service contract is terminated at an earlier date, the payments made should be taken into consideration in the premium based earnings of the last month of the last month of work.
On the other hand, in Article 288 of the Code of Civil Procedure numbered 1086, it is stated that legal transactions made for the purpose of the birth, reduction, transfer, modification, renewal, postponement, repudiation and redemption of a right must be proved by deed if their amount or value at the time they are made exceeds a certain amount, and even if the amount or value of these legal transactions falls below a certain amount for any reason such as payment or release from debt (release), they cannot be proved without a deed.
In Article 289, it is reminded that witnesses may be heard in the case of the express consent of the other party by reminding the above provisions in matters that must be proved by deed pursuant to Article 288, and in Article 292, it is explained that witnesses may be heard if there is a written beginning of evidence in matters that must be proved by deed, and it is stated that the beginning of evidence is the papers and documents given by the party against whom it is presented, which show that it exists, although it is not sufficient to prove the subject of the lawsuit completely. Articles 200 and 202 of the Code of Civil Procedure No. 6100, which entered into force on 01.10.2011, also preserved these regulations.
In the calculation of the insurance premiums to be paid to the Institution, the actual wage/earnings should be taken as a basis, and due to the public nature of the service determination cases, although the fact of work can be proved with all kinds of evidence, there is no freedom of proof in the same breadth regarding the wage, and the claims of receiving wages exceeding the limits written in the mentioned articles must be proved by written evidence.
If the wage amount exceeds the limits specified in the article, it is possible to prove the actual wage to be determined by documents such as money receipts, bank records, commercial book records, wage slips showing the monthly wage including the signature of the insured, provided that they are issued with legal validity. Witnesses may be heard for the amount below the limit of proof by written evidence, and even if the amount requested to be determined exceeds the limit, it is possible to hear witnesses if there are documents that can be considered as the beginning of written evidence before and after the alleged work.
As a matter of fact, the same opinion and approach was adopted in the decisions of the General Assembly of Civil Chambers of the Court of Cassation dated 20.10.2010 and numbered 2010/10-480 Esas – 2010/523 Decision, 20.10.2010 and numbered 2010/10-481 Esas – 2010/524 Decision, 20.10.2010 and numbered 2010/10-482 Esas – 2010/525 Decision, 19.10.2011 and numbered 2011/10-608 Esas – 2011/649 Decision, 19.06.2013 and numbered 2012/10-1617 Esas – 2013/850 Decision.
On the other hand, in terms of the period of Law No. 5510;
In Article 80/1-d of the Law No. 5510; “The earnings of the insured within the scope of subparagraph (a) of the first paragraph of Article 4 are determined as follows.
d) Wages are subject to premiums in the month in which they are earned. Other payments, on the other hand, are firstly included in the earnings of the month in which they are paid and the part of these payments other than wages that cannot be subject to premium due to exceeding the upper limit in the month in which they are made, starting from the month following the month in which the payment is made, shall be added to the premium-based earnings of the following months below the upper limit, not exceeding two months.
In the event that the payments other than wages paid by the employers of the workplaces subject to collective labour agreements or in accordance with the decisions of public administrations or judicial authorities are paid on a date when the service contract does not exist or is suspended, they shall be included in the earnings of the last month to which the earnings subject to premium is subject, taking into account the provision of Article 82. İn these cases, if the insurance premiums are paid until the end of the month following the date of finalisation of the decisions of the above-mentioned authorities, the delay penalty and delay increase are not charged and the provisions of Article 102 are not applied.”
In the light of the above legal regulations and explanations, in the light of the above legal regulations and explanations, the letterhead of … Steak House, which was accepted by the court and allegedly given by the defendant employer, signed and written by the General Coordinator … on the stamp of the defendant company “…Branch Directorate, … Ltd. Şti Argentina Cad. No:18/A …/… … who works as a waiter … receives a tip of 500 TL per week.
We kindly request the necessary action to be taken…”, whether the undated document was issued by the defendant company, if it was issued, for what purpose and when it was given should be asked from the defendant employer, the fact that the aforementioned document can be issued at any time should also be taken into consideration and the issue of whether it can be accepted as the beginning of written evidence should be examined and a decision should be made according to the result to be obtained from the evidence collected.
The court’s decision as written as a result of incomplete examination and erroneous evaluation is contrary to the procedure and the law and is a reason for reversal.
In that case, the appeals of the defendant Institution’s attorneys aiming at these aspects should be accepted and the judgement rendered by the Court of First Instance should be reversed by lifting the decision of the 11th Civil Chamber of the … Regional Court of Appeal.
CONCLUSION:
It was unanimously decided on 19.10.2021 that the decision of the 11th Civil Chamber of the … Regional Court of Appeal should be reversed for the reasons explained above, and the file should be sent to the Court of First Instance that rendered the decision, in accordance with Article 373/1 of the CCP.
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