Worker Service Determination Case File Constitutes Strong Evidence But Not Conclusive Evidence Supreme Court Decision
T.C.
COURT OF CASSATION
21st CIVIL CHAMBER
CASE NO: 2016/19742
DECISION NO: 2018/2740
DATE OF DECISION: 03/22/2018
COURT: Labor Court
>EMPLOYEE SERVICE DETERMINATION CASE, SERVICE DETERMINATION REQUEST IN TERMS OF EMPLOYEE CLAIMS, THE CASE FILE IS CONSIDERED STRONG EVIDENCE BUT NOT CONCLUSIVE EVIDENCE.
The plaintiff requested a decision on the determination of his work performed at the defendant employer’s workplace between 08/02/2007 and 13/01/2009.
As stated in the court’s decision, the request was granted. Upon appeal of the judgment by the defendant’s representative, it was determined that the appeal was filed within the time limit, the documents in the file were reviewed, the matter was considered, and the following decision was rendered.
DECISION
The case concerns the plaintiff’s request for the determination of his continuous employment at the defendant’s workplace between February 8, 2007, and January 13, 2009.
The court decided to accept the case.
The dispute centers on whether the plaintiff’s request for the determination of his service was proven in accordance with the law.
Although Articles 79/10 of Law No. 506 and 86/9 of Law No. 5510, which form the legal basis of the case, do not provide for a specific method of proof for this type of service determination case, the nature of the case concerns public order and therefore requires special sensitivity and diligence
. In such cases, it must first be properly investigated whether the employer has provided the documents relating to the plaintiff’s work. If this condition is met, it must be determined in full whether the workplace actually exists and whether it falls within the scope of the law or is of a nature to be included in the scope, and then the existence of the fact of work must be investigated with particular sensitivity.
Although the fact of employment can be proven by any kind of evidence, witness statements should be evaluated regarding the subject, nature, start and end dates of the employment. Care should be taken to select witnesses who worked at the workplace during the same period as the plaintiff and are payroll witnesses officially recorded by the employer, or employees of neighboring employers performing the same type of work and officially recorded in their payrolls. The testimony of these witnesses must establish the fact of employment in a manner that leaves no room for doubt or hesitation. The Supreme Court of Appeals General Assembly of Civil Law, dated September 16, 1999, 1999/21-510-527, June 30, 1999, No. 1999/21-549-555, and November 3, 2004, No. 2004/21-480-579, are also in line with this.
In terms of the request for service determination, the employee’s claims in the case file constitute strong evidence but are not conclusive evidence.
In the specific case; it is understood that the Court reached its conclusion based on the documents and records contained in the wage claim case file, and therefore, it was erroneous to reach a conclusion in writing without considering that the finalized wage claim judgment cannot alone constitute the basis for the service determination case. The task at hand is to designate the insured persons mentioned in the payrolls of the defendant workplace for the period in dispute as witnesses ex officio and to refer to their statements. If the statements of the witnesses are not sufficient or if their addresses cannot be reached, the Social Security Institution, the Tax Administration, the Municipality, and the Police Department to obtain statements from the employers of neighboring workplaces or from employees officially registered with these employers. taking into account that the nature of the case concerns public order, expanding the investigation, evaluating all the evidence collected together, and, considering whether the case has been subject to a statute of limitations, the Court shall render a decision accordingly.
The Court’s written judgment, based on incomplete examination and investigation without considering these material and legal facts, is contrary to procedure and law and is a reason for reversal. Therefore, the defendant workplace’s appeals for review aimed at these aspects should be accepted, and the judgment should be reversed.
CONCLUSION: The judgment is REVERSED for the reasons stated above, and the appeal fee shall be refunded to the defendant upon request. This decision was made unanimously on March 22, 2018.