Court Of Cassation Decision On Wage Claim
T.C Judiciary Court 22nd Civil Chamber Esas: 2019/ 6983 Decision: 2019 / 17337 Date of Decision: 26.09.2019
SUMMARY: In the concrete case; the Court’s decision to determine that the plaintiff’s employer was the defendant Elektrik Üretim A.Ş. General Directorate from the very beginning is in accordance with the scope of the file and the reversal order. Since there is no non-unionized worker in the defendant employer’s workplace who can be a precedent for the plaintiff and who does not benefit from the collective bargaining agreement; there is no inconsistency in the rejection of the plaintiff’s differential wage claim and the claims for receivables arising from the determined wage difference. However, since the plaintiff is considered to be an employee of Elektrik Üretim A.Ş. from the beginning; as stated in the decision of reversal, the additional payment receivable should be calculated over the wage he actually received. Deciding to reject the additional payment receivable without considering this aspect was erroneous and required a reversal.
(4857 S. K. art. 32)
Case and Decision: The appeal of the decision rendered as a result of the lawsuit between the parties was requested by the plaintiff’s attorney, and it was understood that the appeal request was in due time. After listening to the report prepared by the Examining Judge … for the case file, the file was examined and the requirements were discussed and considered:
Summary of the Claimant’s Request:
The plaintiff’s attorney claimed that his client was working as a registered sub-employer employee in the defendant’s workplace, that the relationship between the main employer and the sub-employer was based on collusion, that his client should also benefit from the financial rights provided by the defendant to its own employees, and requested the determination that the real employer of his client was the defendant from the beginning, and that the differential wage receivable and some labor receivables should be decided.
Summary of Defendant’s Response:
The defendant’s attorney requested the rejection of the lawsuit.
Summary of the Court Decision:
The court, based on the evidence collected and the expert report, decided to partially accept the lawsuit.
Upon the appeal of the decision by the defendant, our Chamber decided to reject the other appellate objections and decided that in order to determine the wage of the plaintiff, it is necessary to ask whether there is a peer worker who performs similar or the same work as the plaintiff but does not benefit from the collective labor agreement, and to examine how the monthly wage amount is reached in the peer files, and to examine how the monthly wage amount is reached in the peer files, as a basis for wage determination for the concrete file, 22 TL coefficient and to clarify how the wage was reached, and considering that the defendant both did not hire drivers after 2003 and reported the wage for the drivers hired after 2003, this contradiction should be resolved by asking the defendant and the plaintiff’s wage should be determined in a manner suitable for inspection.
The Court, which complied with the reversal, determined how the wage accepted in the precedent files was reached, but upon the request of the plaintiff’s attorney, it was decided to partially accept the lawsuit based on the calculation made on the basis of the daily wage in the labor market list reported by the High Science Board of the Ministry of Environment and Urbanization.
Upon the appeal of the decision by the defendant, our Chamber decided to reject the other appellate objections and reversed the decision on the grounds that since there is no non-unionized worker who does not benefit from the collective bargaining agreement that can be a precedent for the plaintiff in the defendant employer’s workplace; the plaintiff’s claims arising from the difference in wages and the wage difference determined by the difference in wages should be rejected and the unpaid labor receivables, if any, should be taken into consideration over the wage actually received.
The Court, which complied with the reversal, determined that the plaintiff’s employer was the General Directorate of the defendant Elektrik Üretim A.Ş. from the very beginning and decided to reject the receivables subject to the lawsuit.
Appeal
The decision was appealed by the plaintiff’s counsel.
Grounds:
1-According to the writings in the file, the fact that the decision is in accordance with the reversal and that there is no inaccuracy in the appreciation of the evidence, it is necessary to decide to reject all the appellate objections of the plaintiff other than the scope of the following paragraph.
2- In the concrete case; the Court’s decision to determine that the plaintiff’s employer was the General Directorate of the defendant Elektrik Üretim A.Ş. from the very beginning is in accordance with the scope of the file and the reversal order. Since there is no non-unionized worker in the defendant employer’s workplace who can be a precedent for the plaintiff and who does not benefit from the collective labor agreement; there is no inconsistency in the rejection of the plaintiff’s differential wage claim and the claims for receivables arising from the determined wage difference. However, since the plaintiff is considered to be an employee of Elektrik Üretim A.Ş. from the beginning; as stated in the decision of reversal, the additional payment receivable should be calculated over the wage he actually received. Without considering this aspect, the decision to reject the additional payment claim was erroneous and required a reversal.
Conclusion It was unanimously decided on 26.09.2019 that the appealed decision shall be reversed for the reasons written above, and the prepaid appeal fee shall be returned to the relevant person upon request.
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