T.C
SUPREME COURT
21. law office
ISSUE NO:2016/19742
DECISION NO:2018/2740
DATE OF DECISION:22.03.2018
TRIBUNAL : Employment Tribunal
>THE CASE FILE IN WHICH THE EMPLOYEE WILL RECEIVE LABOR IN TERMS OF SERVICE DETERMINATION REQUEST IS STRONG EVIDENCE AND IS NOT CONCLUSIVE EVIDENCE.
The plaintiff asked to Decisively determine the work that took place between 08/02/2007 and 13/01/2009 at the workplace belonging to the defendant employer.
The court has decided on the acceptance of the request, as indicated in the decision.After the decision was appealed by the defendant’s deputy, it became clear that the appeal request was in due course, the papers in the file were read with the report prepared, the need for the work was considered, and the following decision was made.
decision
The lawsuit relates to the plaintiff’s request to establish that the defendant worked at the defendant’s place of work continuously between 08.02.2007 and 13.01.2009. The plaintiff Decried the defendant’s work from 08.02.2007 to 13.01.2009.
The court has decided to accept the case.
The dispute is collected at the point of whether the plaintiff’s request for the determination of the service has been proved by the method.
79/10 of Law No. 506, which establishes the legal basis of the case. and 86/9 of Law No. 5510. although the articles do not provide for a special method of proof for cases of detection of this type of service, the nature of the case concerns public order, and therefore with special sensitivity and care
it should be carried out according to the established jurisprudence of the Supreme Court and, increasingly, our Department. In such cases, first of all, it is necessary to investigate by the method whether the documents on the plaintiff’s work are issued by the employer. If this condition has occurred, it should be fully determined whether the workplace really exists within the scope of the law or is of a nature to be covered, and then the existence of the phenomenon of work should be investigated with special sensitivity.
The study of the phenomenon can be proven with any evidence, but the subject of her work, Nature, start and end dates of the words matters, the witness should be evaluated, and listened to the witnesses by the plaintiff worked in the same period at work and the employer payroll or neighboring the official record of the witnesses from past employees, employers engaged in official records and payrolls of the same nature work it should be selected. The fact of working with the statements of these witnesses should be determined in such a way that there are no doubts and pauses. 16.9.1999 Day of the General Assembly of the Supreme Court of Law 1999/21-510-527 , 30.6.1999 days 1999/21-549-555- 3.11.2004 their decision dated 2004/21- 480-579 is also in this direction.
The case file that they will receive labor from the point of view of a service determination request is strong evidence and is not conclusive evidence.
In a concrete case; It is understood that the conclusion was reached based on the documents and records contained in the case file that the court will receive labor, but accordingly, it was erroneous to reach a conclusion in writing without taking into account that the final declaration that the labor will receive cannot be the basis alone in the service determination case. The work to be done, the defendant is a matter of dispute in the place of business of the insured last name by selecting the payroll period ex officio as witnesses refer to these statements, if we are not content with the statements of witnesses, or in the event the address is not reached, Social Security Administration, tax administration, municipal and public agencies such as the police department will be identified through the employer or the employer of the workplace neighboring employees refer to the statements of the official records of the past, it consists in taking into account that the case is qualitatively related to public order, evaluating all the evidence collected together by expanding the research and making a decision by the Court according to its conclusion, taking into account whether the case has suffered a reduction in rights or not.
The establishment of a written judgment by the court with incomplete examination and research, regardless of these material and legal facts, is contrary to the procedure and the law and is the reason for the violation. In this case, appeals of the defendant’s place of work aimed at these aspects must be accepted, and the provision
it should deteriorate.
CONCLUSION: It was decided unanimously on 22.03.2018 that the provision should be OVERTURNED for the reasons described above, and the appeal fee should be returned to the defendant upon request.
