17 Sep BOTH THE PUBLIC AND THE PRIVATE COMPANY ARE RESPONSIBLE FOR THE SEVERANCE PAY OF THE SUBCONTRACTOR WORKER
9. Civil Depatment
Base Number: 2017/13142
Decision Number: 2020/69
“text of jurisprudence”
COURT :LABOUR COURT
As a result of the case between the parties, it became clear that the decision made as a result of the appeal was within the duration of the appeal requests, with the request of the defendants ‘ deputies to be examined on dec. After the report organized by the Audit Judge for the case file was listened to, the file was examined, and the need was discussed and considered:
THE DECISION OF THE SUPREME COURT
A) Summary of the Plaintiff’s Claim:
The plaintiff’s Attorney, his client’s retired and working as cleaning staff quit over the plaintiff for the payment of wages to the minimum wage in the hospital 6 days a week 07.00 -16:00/ 18:00 hours is entitled to overtime wages and working between the High Holidays, that works too, didn’t use any of annual permits, the prosecutor in a row, more than one fixed-term employment contracts into indefinite-term contract from the beginning of the plaintiff entitled to the severance pay you turn; without prejudice to the rights for severance pay from work on the surplus 1.000.00 TL 29/01/2015 applied to deposits with highest bank interest from the date of the release date, with legal interest paid annual leave that will receive $ 100.00, 100.00 GBP highest bank interest in the fee study more, with 100.00 TL, national holidays and public holidays the fee to be dominated with the highest bank interest, attorneys ‘ fees, litigation costs from the defendant required the collection.
B) Summary of the Respondent’s Response:
The defendant is the deputy of the Turkish Public Hospitals Authority; vague claims will not be opened and the absence of a legal benefit that should have dismissed the case, the case opened, and time overruns of fee receivables from the date 5 years ago to become due from the plaintiff as a sanitation worker in various companies until the date 29/01/2015 date 01/01/2005 university training and Research Hospital, working in retirement 29/01/2015 I joined to the end of his contract on the date of the petition, notice and severance costs related to the contract and general expenses of the administration that is paid to the company in that we are not responsible, he demanded that the case be dismissed and decided in terms of hostility and principle, arguing that they are not in the position of the main employer and that the responsibility belongs to the contractors, that the main employer is the mentioned companies.
Defendant … Ins. Ltd.Comp. attorney; Within the framework of the law and related regulations No. 6552 sub-contractor of the responsibility for the plaintiff claims that the company does not reside where they were the object of antagonism of the Claimant voluntarily left the job without no justifiable cause, severance pay owed and whether you’re being retired, if there is any paperwork that was submitted to the company, the plaintiff’s only due to the expiration of retirement on the day the petition is granted that you might want to leave work if the working time of the company’s liability is limited to the plaintiff of company, working 6 days a week is not true, does not exceed 45 hours of weekly working hours, if the plaintiff for the full payment of all rights of a continuous work on national holidays and on public holidays with paid for with it comes to work, the plaintiff’s company the right to use annual leave in a year’s time working for the requested time overruns of receivables, arguing the merits of the case and to dismiss the animosity asked.
C) Summary of the Decision of the Local Court:
The court decided to partially accept the case.
D) Appeal:
The defendants ‘ deputies appealed the decision separately.
E) Justification:
1-According to the articles in the file, the collected evidence and the legal reasons on which the decision is based, all appeals of the respondent Company, the deputy of the respondent institution, which are outside the scope of the following paragraph, are not in place.
2-The main dispute between the parties is being deconstructed in the deconstruction of the legal relationship between the changing sub-employers and its effects on the labor rights of the employee.
in Article 2 of the Labor Code No. 4857, the employer is described as a natural or legal person who employs a worker on the basis of an employment contract, or institutions and organizations that do not have a legal entity. In order for the parent employer to be able to talk about the sub-employer relationship, there must first be an employer with a workplace where goods or services are produced and a second employer with a job in the same workplace so that the parent employer can talk about the sub-employer relationship. It is not necessary that the subordinate employer initially has a workplace. A sub-employer may have earned the title of employer for the first time because of the job he received from the main employer and the workplace where this job was seen.
Due to the fact that an auxiliary job related to the production of goods or services being carried out in the workplace belonging to the main employer is left to the subordinate employer, the question of whether an independent workplace can be mentioned from the point of view of the subordinate employer should be resolved first. Because in order to determine whether the change of the main employer or sub-employer is a transfer of the workplace, the concept of the workplace should be clarified at this point.
Looking at the problem from the point of view of the Law on Trade Unions No. 2821, it should be said that the line of work to which the main job is subject also applies to auxiliary work, but in the face of the explicit provision of Article 3 of the Law No. 4857, the situations in which the job is left to the subordinate employer should be separated from this. Indeed, Article 2/III of Law No. 4857 contains the main rule that coincides with the Law on Trade Unions in the form of “The workplace is a whole within the scope of the business organization created by places, add-ons and tools connected to the workplace”, but in the following paragraphs the relationship between the main employer and the sub-employer is regulated, in a sense, a separate situation is envisaged with the release of the auxiliary job to the sub-employer. Later, in Article 3 of the same law, the rule “The sub-employer is obliged to notify in accordance with the provision of paragraph one for its own workplace that it has created for the production of goods or services in this capacity” was included in the rule and the problem was clearly resolved, and it was revealed that the sub-employer’s workplace was independent of the workplace belonging to the main employer. The specified solution method also corresponds to the nature of the sub-employer institution. Before the entry into force of Law No. 4857, the General Assembly of the Supreme Court of Law concluded that the workplace of the sub-employer is independent of the workplace belonging to the main employer (Supreme Court of the Republic of Kazakhstan. 6.6.2001 day 2001/ 9-711 E, 2001/ 820 K).
The transfer of all or part of the workplace to another person based on a legal process can be defined as a transfer of the workplace. In Article 6 of the Law No. 4857, it is regulated that if a whole or part of the workplace is transferred to someone else based on a legal transaction, existing employment contracts will be transferred to the inheritor. According to this narrative, the transfer of the workplace in which the sub-employer conducts its activities within the scope of the job received from the main employer to another employer is a transfer of the workplace in accordance with Article 6 of the Labor Code No. 4857. The well-established case law of our apartment is also in this direction (9. HD. 18.9.2008 day 2006/26306 E, 2008/23980 K.).
It is also possible to conclude a contract between the sub-employer whose term has expired and the sub-employer who has received the new tender, which dec provides for the transfer of the workplace. In cases where the employees who will continue to work at the workplace in the presence of the new sub-employer are determined despite the change of the sub-employer, it is indisputable that the employment contracts in respect of the mentioned workers are passed by the employer who has taken over. However, it is necessary to recognize that the employment contracts of employees who are not indicated among the employees who will work at the new sub-employer and are not notified by the expired sub-employer to work at another workplace have been terminated by the decertifying sub-employer.
There is no legal relationship between sub-employers in the case when the sub-employer leaves the workplace by showing all its employees another workplace based on the reason for the termination of the relationship at the end or before the period of work dec by the sub-employer with the main employer, and then the job is given to another sub-employer by the main employer. Since the legal relationship takes place between the sub-employers and the main employer, the specified situation cannot be considered as a transfer of workplace between the sub-employers.dec dec.
The most common form of change of sub-employers is that the sub-employer whose term has expired leaves the workplace and the workers continue to work for the new sub-employer. It is important to determine whether this active situation is a workplace transfer or not and to determine its legal consequences. The main thing that should be in the exchange of sub-employers is that the sub-employer, whose term has expired, immediately leaves the workplace, takes its employees with it to other workplaces or terminates their employment contracts. Conversely, if the employees of the sub-employer continue to work in the same way with the new sub-employer despite the decoupling of the sub-employer from the workplace, acceptance of a workplace transfer within the meaning of Article 6 of the Labor Code between the sub-employers is required. In this case, the provision is made in the same article that the new sub-employer also inherits the ongoing service contracts.
The bottom of the workplace between employers without changing the transfer if we do not accept any legal process, as each sub-period the responsibility of their employer in relation to labor rights in accordance with the law in question would be the responsibility of the employer and principal sub-stage right that may cause the loss of the responsibility of the employer. For example, in the workplace, there will never be an obligation to pay severance pay and leave fees for sub-employers who employ workers for a period of 11 months and 29 days periodically, although the responsibility of the main employer for these labor rights will be raised for the entire period. However, it is inconceivable that the responsibility of the main employer exceeds the responsibility of the subordinate employer or employers.
the provision of Article 14/2 of the Law No. 1475 can be considered as a broader regulation, which also includes the transfer of the workplace specified in Article 6 of the Law No. 4857. Indeed, after mentioning the transfer or revenge of workplaces in the article, “…or transfer from one employer to another employer in any way or transfer to another place…”, the scope of application is drawn more broadly in accordance with Article 6 of the Labor Code No. 4857. In that case, the principal employer severance pay in terms of sub-allocated from employer work after the end of the relationship sub-later in the same area with the employer, whether or not there is a connection between the bottom or actual legal employer, previous employer on the date of severance pay in terms of fees and the transfer of limited liability with the employer for the entire period of their last child accept the responsibility period.
The main criterion of the workplace transfer is the preservation of the identity of the economic union. Dec the material and intangible elements have been transferred and their value at the time of transfer, the transfer of the workforce, the transfer of the customer’s circle, the degree of similarity of the activities carried out before and after the transfer at the workplace, the duration of this if the activity at the workplace dec interrupted, are considered among the criteria for the transfer at the workplace.
According to these statements, if the employee works without interruption within the scope of the job received from the main employer and in the workplace belonging to different sub-employers, a solution should be deciphered according to the rules of workplace transfer. In this case, the changing sub-employers are also considered to have inherited the employee’s employment contract and the born labor rights. The employee of an employment contract or sub-varying termination of an employment contract by the employer, unless notification is made to the sub-contractor will continue with that in the workplace, workers who continue to work in terms of notice and demand conditions that are realized depending on the purpose of severance pay permit fees are not.
In contrast, the worker’s termination of employment contract expired bottom of the employer in case of notification of cancellation since the end of the business relationship with the worker, then the new sub-employer work next to a new business agreement. In this case, it will be necessary to evaluate the status of obtaining a right according to the nature of the termination, since the conditions for claiming termination-related rights will be fulfilled.
In a concrete dispute; the defendant … Ins. Ltd.Comp. his company is the last sub-employer and is jointly and severally responsible for the entire severance package together with the other respondent institution. According to the court, in violation of the rights of the respondent institution to appeal, the respondent … Ins. Ltd.Comp. it is erroneous that his company was not held responsible for severance pay and required a breakdown.
F) THE RESULT:
It was unanimously decided on 13.01.2020 that the appealed decision would be OVERTURNED for the reason written above, and the appeal fee received in advance would be refunded to the interested parties upon request.
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