YARGITAY 21st Civil Chamber
ESAS: 2013/17594
DECISION: 2014/2401
The claimant requested a decision on the determination of his work at the workplace of the employer of the defendants.
The court decided to reject the request as stated in the judgement.
Upon the appeal of the judgement by the plaintiff and the defendants’ representatives of the 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.
DECISION
1-According to the writings in the case, the collected evidence, and the reasons for the judgement, all appellate objections of the defendant SSI are rejected,
2- In the examination made in terms of the plaintiff’s appeal objection;
The lawsuit is related to the claim for the determination of the actual wage of the plaintiff’s work.
The court’s decision regarding the rejection of the request for the determination of the actual wage was based on incomplete research and examination.
It is contrary to the ordinary course of life for a qualified and experienced worker to work at minimum wage according to the nature of his work. In this case, it cannot be considered that the documents issued by the employer on the minimum wage cannot be proved otherwise.
In the concrete case, in the defendant workplace, many workers filed lawsuits for the determination of the real wage with the claim that the part of the wage shown in the insurance base was paid through the bank and the remaining part was paid in an envelope by hand in a room in the workplace by lining up the workers, and in these cases of the same nature, the CD belonging to the images of the camera recordings in the workplace regarding the payment of money by hand in the said envelope was submitted to the file.
It is understood that the workers were waiting in line in front of the door of a room as claimed in these images, that those who came out of the room had thin long envelopes in their hands, that the witnesses declared that there was such a practice in the workplace, that the payrolls were unsigned, that the plaintiff worked as a forklift worker in the packaging department, that in the letter of the Eskişehir Chamber of Commerce, it was reported that those who did the equivalent job in 2007-2010 could receive wages in the range of 30% more than the minimum wage.
The work to be done by the court is to accept the camera footage submitted to the file as evidence as the beginning of the evidence, to get the plaintiff’s registration file and the payrolls of the workplace from the Social Security Institution, to determine the scope and capacity of the workplace with the discovery and expert examination to be made, to apply for the statements of other workers registered in the employer’s payrolls when necessary, to compare the notifications made by the employer and the qualifications of the workers, and to focus on whether the workers employed by the employer are reported at the real wage according to their seniority and position.
To determine whether the plaintiff is a qualified worker who is not usual to work with the declared wage, to determine whether he is employed in a qualified job, if it is determined that it is not usual to work with the declared wage, to evaluate whether the wages paid by the employer to the workers in the same position are in accordance with the truth, if it is determined that these notifications are in accordance with the truth, to take these wages as basis, otherwise, to decide according to the result to be obtained by conducting a peer wage research from workplaces performing similar work, from the relevant professional chamber and the Turkish Statistical Institute, if necessary.
In that case, the plaintiff’s objections on appeal in this respect should be accepted and the judgement should be reversed.
CONCLUSION:
It was unanimously decided on 17/02/2014 that the judgement shall be reversed for the reasons explained above and the appeal fee shall be refunded to the plaintiff upon request.
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