Insurance Determination Case
T.C JUDGMENT
21st Civil Chamber
Main: 2018/ 6938
Decision: 2019 / 177
Decision Date: 17.01.2019
A) Claimant Request:
The lawsuit is about the request for a decision to determine the insurance start date as 01/05/1985.
B) Defendant Response:
In summary, the defendant Social Security Institution attorney stated that they objected to the lawsuit filed by the plaintiff in terms of statute of limitations, jurisdiction and forfeiture of rights, that …Forest Products … Şti, where the plaintiff declared that he worked, was processed in the file numbered …, that this workplace was included in the scope of the law on 01/08/1982, that the plaintiff did not have any application to the institution, and therefore requested a decision to dismiss the lawsuit.
C) Reasoning and Decision of the Court of First Instance:
At the first instance court; “…. the plaintiff started to work as an employee at the workplace belonging to …, the plaintiff continued this work uninterruptedly, the plaintiff acted under the orders and instructions of the employer, the plaintiff spent all of his working hours at the employer’s workplace, when the current legal regulations and witness statements are evaluated together, the plaintiff started to work at the workplace belonging to … on 01/05/1985, the plaintiff continued this work uninterruptedly, on the date requested by the plaintiff, the plaintiff started to work at …. ‘s workplace, and that this work should be accepted to be based on actual and real work, and since it is understood that the documents within the scope of the file and issued by the employer confirm the plaintiff’s claim in this regard, for all these reasons, it should be decided to accept the plaintiff’s lawsuit, “ it was decided on the grounds that ”With the ACCEPTANCE of the lawsuit; It was decided to determine that the insurance start date of the plaintiff, … and … son of … and …, born 10/04/1972. … Turkish Identity Number …, born on 10/04/1972, son of … and …, was determined to have started his insurance coverage on 01/05/1985.” Application for Appeal; The defendant Institution’s representative requested the annulment of the decision of the Court of First Instance on the grounds that sufficient research was not conducted and the employer was not included in the case.
D) Reasoning and Decision of the Regional Court of Appeal:
The Regional Court of Appeals stated that “According to the records and documents in the file, the insured employment declaration stating that the plaintiff started to work as an employee on 1/5/1985 was submitted to the Institution within the grace period, the insurance registration card showing that he worked on the said date was submitted to the file, the payroll witnesses who were listened to confirmed the employment, the identity information in the employment declaration and the population records of the plaintiff are compatible, the insured workplace was within the scope of the law on this date, the plaintiff has legal interest in filing the case at hand according to the insurance start date in the records of the Institution, 22. 7.2017, it is understood that the plaintiff applied to the Institution for the determination of the date of commencement of insurance, that the statute of limitations did not run because the insured employment notification was submitted to the Institution within the grace period, and that the payroll witnesses confirmed the work. “ grounds
“1-Acceptance of the appeal request of the defendant institution’s attorney in accordance with subparagraph 353/1-b.2 of the CCP No. 6100,
2-… The decision of the 1st Labor Court dated 12/12/2017 and numbered 2017/255 Main, 2017/618 Decision is hereby annulled, instead,
3- With the ACCEPTANCE of the case, it was decided to determine that the plaintiff worked subject to a service contract for 1 day on 01.05.1985 and that the insurance commencement date was 10.04.1990, when he turned 18 years old, in accordance with Article 60/G and 108 of the Law No. 506.”
E) Appeal:
The defendant Institution’s attorney stated that “Although the BAM reversed the decision, it ruled an attorney fee against the Institution. The decision was made with incomplete examination.”
The plaintiff’s counsel appealed on the grounds that; “The application of Article 60/G without a request is contrary to the procedure and the law.”
F) Evaluation of Evidence and Reasoning:
1- It has been decided to reject all the objections of the plaintiff’s counsel and the defendant Institution’s counsel, except for the objections out of the scope of the sub-paragraph below.
2- In paragraph 1 of Article 108 of the Law No. 506, which constitutes the legal basis of the lawsuit; “The beginning of the insurance period to be taken into consideration in the application of disability, old age and death insurances is the date when the insured started to work for the first time subject to the repealed Laws No. 5417 and 6900 or this law.” In order for a person to be considered insured, the existence of an insurance employment declaration is not sufficient. At the same time, it is also a condition for that person to be actively working as determined by the Law (Article 2 of the Law No. 506 and Article 4/a of the Law No. 5510). This aspect is emphasized in Article 6 of the Law No. 506 and Article 7/a of the Law No. 5510 and in the decisions of the General Assembly of the Court of Cassation numbered 1999/21-549-555, 2005/21-437-448 and 2007/21-306-320. In this respect, it is obvious that it is necessary to investigate whether the plaintiff is actually working at the workplace. The documents that will reveal the actual or real work are the documents that must be submitted to the Institution together with the employment declaration, such as the monthly insurance days information that reveals the number of days, earnings status and working dates of the insured specified in Article 79 of the Law No. 506 and the 4-month premium payrolls specified in Article 17 of the Regulation on Social Insurance Transactions. Although the employment declaration, which is duly issued and submitted to the Institution within the prescribed period, shows that the person has been hired, it cannot be considered sufficient alone in terms of demonstrating the existence of actual work. In order to be able to speak of insurance, the existence of work must be determined in accordance with the principles accepted in the practice of the Court of Cassation for the determination of insurance based on Article 79/10 of the Law No. 506. This is because every lawsuit for the commencement of insurance also includes the claim for the determination of insurance. On the contrary, this would create an unfair and unjust situation between the employees and non-employees, especially in terms of the insurance period foreseen for the acceptance of the old-age pension. For this reason, in cases where the employment declaration is given but other legal documents are not available, convincing and sufficient evidence that can reveal the fact of employment should be sought, and in such cases based on public order, the judge should determine whether the conditions of insurance have been met by expanding the direct investigation as part of his duty. This aspect is also emphasized in the decisions of the General Assembly of Civil Chambers of the Court of Cassation dated 16.9.1999, 1999/21-510-527, 30.6.1999, 1999/21-549-555, 5.2.2003, 2003/21-35-64, 15.10.2003, 2003/21-634-572, 3.11.2004, 2004/21-480-579 and 2004/21-479-578, 10.11.2004, 2004/21-538 and 1.12.2004, 2004/21-629.
These types of cases should not be seen as consisting of the determination of only one day’s work, the rights to be gained by the insured with the insurance period that will be determined with the acceptance of one day’s work should be taken into consideration and it should be specifically determined whether there is actual work with the entry declaration, accordingly, the statements of the witnesses who are included in the payroll for the period and who worked on the date of the claimant’s request and, if necessary, the statements of the persons who are determined to be employees of neighboring workplaces through the records or the research to be conducted by law enforcement should be applied and a decision should be made according to the result. From the records and documents in the file; the claimant, who was born on 10/04/1972, was 13 years old on 01/05/1985, which is the date of employment in the declaration, the employment declaration dated 01/05/1985 was submitted to the Institution on 24/06/1985 from the workplace with the registration number … and the title … in the province of …, a copy of the insurance registration card dated the same date was submitted, the workplace with the registration number 18329 … Orman Ürünleri Gıda San. Ltd. Şti workplace was within the scope of the law between 01/08/1982-30/06/2006, the payroll for the 1985/1st period was submitted from the said workplace, the witness (brother) … who was listened to had a name and confirmed the claim, the other two payroll witnesses who were listened to had work in the 1984/1-2-3rd period and they also confirmed the claim, the claimant’s 4/a work started in the 1997/3rd period in the service chart, it was decided to accept the case without investigating the education and apprenticeship status of the claimant who was 13 years old on the date of the claim.
In the concrete case, it was erroneous to reach a conclusion without examining whether the claimant, who was 13 years old on the date of the claim, worked in the forest products workplace for production or for the purpose of learning a profession and art. When determining the nature of the relationship between the parties, in other words, when deciding whether the claimant was an apprentice or not during the specified period, the working relationship should be considered. If the predominant characteristic of the contractual relationship is not the fact of work, but the teaching of a profession and art to the insured, apprenticeship can be mentioned. If the apprentice actually participates in the work related to production in the workplace, and the vocational and artistic training is kept in the background, then the apprenticeship relationship cannot be mentioned. In this case, the work to be done by the Court is to ask the witnesses again about the nature of the plaintiff’s work, to investigate whether the plaintiff was a student at that time, to examine the fact of work by bringing the records regarding the educational status of the plaintiff, to ask the relevant Institutions whether the plaintiff has a record of apprenticeship, to ask which unit of the Institution gave the plaintiff’s insurance registration number and which year series it is, to reveal the fact of work based on concrete and convincing information in accordance with Articles 2, 6, 9 and 79/8 of the Law No. 506. After establishing the fact of employment based on concrete and convincing information in accordance with Articles 2, 6, 9 and 79/8 of the Law No. 506, taking into account that the case concerns the public order, the investigation is to be expanded and to decide according to the result. The court, without taking these material and legal facts into consideration, has made a written judgment based on an incomplete investigation, which is contrary to the procedure and the law and is a reason for reversal. In that case, the objections of the defendant Institution’s attorney on appeal aimed at these aspects should be accepted and the “Acceptance of the Case” decision of the Regional Court of Justice should be reversed.
G) CONCLUSION: It was unanimously decided on 17.01.2019 that the decision of the Regional Court of Appeal should be reversed in accordance with Article 373/2 of the CCP No. 6100 for the reasons written above, the file should be sent to the Regional Court of Appeal that issued the decision, and the appeal fee should be returned to the appellant upon request.