27 Apr If The Worker Is Not Hired After Returning From The Military, He Cannot File A Return-to-Work Lawsuit
T.C.
SUPREME
GENERAL ASSEMBLY OF LAW
PRINCIPAL NO: 2015/22-1608
DECISION NO: 2018/448
DECISION DATE: 7.3.2018
>RETURN OF MILITARY SERVICE 18 ET AL. HE CANNOT FILE AN EXTRADITION SUIT BASED ON HIS PROVISIONS.
Summary: 1.) Return of military service of the labor law 18 et al. he cannot file an extradition suit based on his provisions..
2.) if the employer does not start the work, the former employee who requested to be hired pays compensation in the amount of 3 months ‘ wages.(Business K.31/4)
“The return of military service is not employed Labor Act 18 et al. he cannot file an extradition suit based on his provisions. He can’t benefit from job security. Because the contract of employment is terminated due to military service, the contract of employment is not suspended during the period of active military service, and in this case, the contract of employment which does not exist on return of military service cannot be terminated by the employer.”
“A compensation sanction, not an administrative fine, is provided for the employer who does not fulfill the obligation to make employment contracts with former workers who have finished a military or legal assignment, and who does not hire them even though they have the conditions. 31 of the law, indeed. if the employer does not fulfill his obligation to make an employment contract even though the conditions are sought according to the fourth paragraph of the article, he shall pay compensation in the amount of three months ‘ wages to the former employee who requested to be hired.”
Ankara 10 at the end of the trial due to the “Labor claim” case between the parties. 07.03.2014 day and 2013/1747 E. ON the acceptance of the case given by the Employment Tribunal-2014 / 242 K. upon request by the defendant’s attorney to review the appeal of his decision No. 22. 05.05.2014 day of the law office and 2014/11565 E.-2014 / 11387 K. by numbered decision;
“…Plaintiff, employer … P. February July August March 2010, depending on the actual work until July 2012, from August 2012 left the workplace to fulfill military duty, six months of military service completed in February 2013, the employer … wants to return to work again, because there is no vacant staff verbally stated that they can not work, the defendant has two years and five months work in the workplace and, after completing his military service …he was victimized by his refusal to accept the request for his return to work, and requested that his return to work be decided.
The defendant’s attorney has requested that an indefinite term employment contract was signed between the plaintiff and … on 01.11.2011, the plaintiff resigned from the defendant company on 31.07.2012 to fulfill his active military service, the plaintiff completed his regular military service in February 2013, requested his return to work again, but the plaintiff did not have the right to file a
The court found that it was unlawful for the plaintiff not to start the job after returning from military service.
The decision was appealed by the acting defendant.
Article 31/4 of Labor Law No. 4857 “if workers who leave their jobs due to any military and legal duty want to enter work within two months starting from the end of this assignment, the employer must hire them immediately if there are vacancies in old jobs or similar jobs, or if there are other bidders in the first job to be vacated, If the employer does not fulfill his obligation to make an employment contract even though the conditions are sought, he shall pay compensation in the amount of three months ‘ wages to the former employee who requested to be hired. arranged in the form of”.
According to the contents of the file, it is understood that the plaintiff worked as a technician at the defendant’s workplace between 09.03.2010-31.07.2012 and that the plaintiff worker terminated his employment contract by receiving severance pay due to military service. Whether the claimant’s return from military service is hired by the employer or not is related to the establishment of a new employment contract. For this reason, it is not possible for the plaintiff to request reinstatement.
31/4 of the Labour Code No. 4857 mentioned above. its article imposed an obligation on the employer to hire a post-military worker and provided for compensation to be paid as a criminal sanction if it was not initiated.
According to the court, the plaintiff’s request is considered to be a failure to start military service within the scope of Article 31/4 of Labor Law No. 4857.…”
at the end of the retrial, the court resisted the previous decision by overturning the case and turning it back.
The law was reviewed by the General Assembly after it was understood that the decision to resist had been appealed during its time and the documents in the file were read.:
DECISION
The case is 31/4 of Labor Law No. 4857 of the worker who is not initiated upon application after fulfilling his duty of military service. it is related to the request for reinstatement.
The defendant has requested and sued for the decision to return to his job at the defendant’s workplace, claiming that the defendant left his job to do his military service while he was working at the workplace, and that the defendant’s request to start work again after the end of his military service was not accepted by the defendant’s employer on the grounds that
The defendant’s attorney stated that the plaintiff resigned on 31.07.2012 to perform his active military service and left his job, and that he was paid severance pay, and that the employment law no.4857, 31. in addition, the plaintiff’s work is less than one year as well as the military service before the end of the application is not possible to be accepted as a valid application, the plaintiff’s old job or similar vacancies, stating that the case should be dismissed argued.
31/4 of Labor Law No. 4857 after the court stated that although the case was opened with a request for return to work, it was determined that the return of military service stemmed from not being hired, as in the return to work cases, the work to be done here consists of the determination of the illegality of not starting the return of military service work. it was decided that the application made by the plaintiff while he was on leave of absence was valid and that the defendant’s employer did not start the plaintiff, even though the staff was suitable, and that it was determined that it was unlawful for the defendant not to start the plaintiff on his return to military service.
Upon the appeal of the sentence by the defendant’s attorney, the decision was overturned by the special Office for the reason stated in the title section above.
The court, the plaintiff’s return to work by stating that the job has not been started, the case of reinstatement to work is invalid, that is, the employer’s operation is illegal and if this violation is not resolved, the court’s decision on this issue contains the determination provision, the plaintiff’s request to return to military service is related to the determination of the illegality of not starting work, the plaintiff’s Article 26 of Law No. 6100 of the judge, even if it is accepted that it is the duty of the judge to determine that the defendant has acted contrary to this law, that the request has been exceeded for a moment. it was resisted in the previous decision on the grounds that it could decide less than the result of the request according to the article, that the case was considered and concluded as a request to determine the illegality, and that the request was not exceeded.
The decision to resist has been appealed by the defendant’s attorney.
The dispute that comes before the General Assembly of law by way of resistance, the request in the case filed with the request of the plaintiff worker, who has left his job to do his active military service and paid him severance pay for his return from military service is not to be hired, whether the defendant employer’s failure to start the plaintiff to work is unlawful or not, and within the scope of the article, it is collected at the point of whether the rejection is necessary or not.
Considering that the decision made by the court before the examination of the merits of the work was broken to a certain extent by the special office, it was discussed and evaluated as a preliminary question whether it was possible for the court to decide to resist and whether an appeal for the merits can be reviewed by the General Assembly of the law according to the
Although the case was opened by the General Assembly with the request for return to work, the demand was essentially the 31st amendment of the Labor Law No. 4857. where there is a claim based on Article 18 of the same law of the case and request, et al. it was unanimously accepted that the annulment, which was ruled in its articles, was invalid and that it was not possible to accept it as a return to work, therefore the decision was not final and there were no preliminary problems.
First of all, the legal benefit, the determination case, the principle of adherence to demand and the obligation of the employer to make an employment contract should be considered briefly.
I.Legal benefit and determination case:
In Civil Procedure Law, the legal benefit is that the plaintiff has an interest in opening this case (or asking the court for legal protection) so that a lawsuit can be filed with the court.
The plaintiff must have a benefit which is justified (protected) by the rules of law in filing a lawsuit, he must need a court order to obtain his right and the plaintiff must not cause the court to bother unnecessarily (Arslan, R.; Quoted By: Hanağası, E., Davada interest, Ankara 2009, preface VII).
24.06.1992 days of the General Assembly of law and 1992/1-347 E.- 1992/396 K. and 30.05.2001 days and 2001/14-443 E.- 2001/458 K. in its numbered decisions, it was also called the need for legal protection (patronage) (Rechts-schutzbedürfnis). In seeking legal patronage from the courts, there should be a patronage-worthy benefit.
On the other hand, this legal benefit must be” legal and legitimate“,” direct and personal“,” born and current ” (Khanağası, E., a.g….135).
During the period in which the Civil Procedure Law No. 1086 was in force, Mülga accepted the need to have legal benefit when filing a lawsuit as a “case requirement”. This requirement is” one of the general terms of the case “and is counted among the” favorable case conditions ” since its existence is necessary for the investigation of the merits of the case and for the provision of the basis.
Indeed, the same opinion of the General Assembly of the law 24.11.1982 days and 1982/7-1874 E.-914 K.; 05.06.1996 days and 1996/18-337 E.-542 K.; 10.11.1999 days and i5-937 E.-946 K. and 25.05.2011 days and 2011/11-186 E. 2011/352 K., 01.02.2012 day, 2011/10-642 E.-38 K. it was also adopted in its numbered resolutions.
In the Law No. 6100 on Law No. 6100, which came into force on 01.10.2011, this application of the doctrine and judicial decisions is adopted in the same way and the plaintiff has legal benefit in filing a lawsuit titled “Case conditions” 114. in paragraph (h) of the first paragraph of the article, it is clearly counted among the requirements of the case.
It is far from any hesitation that the consideration of the principle of legal benefit in a case as a condition of the case would benefit the prosecution in accordance with the purpose of the trial and the principle of procedural economics.
According to this principle, the existence of the legal benefit as a condition of litigation must be observed spontaneously and at every stage of the trial according to the date of the case being opened as a rule within the framework of the evidences, events or cases submitted by the parties to the case file by the court. In this way, which is part of our domestic law the European Convention on human rights (the convention for the protection of human rights and fundamental freedoms.6 Article 36 of the 1982 constitution. to be able to use the “freedom to seek rights” set out in the article in accordance with the honesty rule; this would constitute an assurance against the abuse of the right to sue by filing unfair lawsuits.
The legal benefit in filing a lawsuit must be a legitimate benefit accepted by the order of law, this benefit must be related to the right holder who filed the lawsuit and must still exist at the time the lawsuit was filed. In addition, the case to be opened must be of the nature to eliminate the danger that will arise. It can be said that there is legal benefit if a court order is required at the time to reach a person’s right. Legal benefit cannot be mentioned unless there is a need for a court order (Pekcanitez, H., Atalay, O., Özekes, M.; Civil Procedure Law, Ankara 2011, p.297).
In the settlement of the dispute, what will be the reflection of the concept of legal benefit in the determination case should be examined separately.
According to the legal protection they want from the court, the cases are divided into eda cases, detection cases and construction cases.
In Eda cases, one is asked to do something, to give something or not to do something, while another is asked to change, abolish, or create a new legal situation, which also exists with construction (innovation) cases. A new legal situation is created with the acceptance of the construction (innovation-inducing) case, and the legal outcome is usually born with a judicial decision.
In a detection case, only a detection sentence can be issued. In the case of determination, the existence or absence of the legal relationship is determined with certainty; in other words, it is determined that the relationship in which the defendant denies the existence exists or that the legal relationship in which he denies the absence exists is destroyed.
In order for a determination case to be acceptable, it is in the interest of the plaintiff (legal benefit) to determine immediately by the court whether the legal relationship that constitutes the subject of this case exists.
In the case of determination, unlike the case of eda and the case of construction, it is not assumed that the plaintiff has such an interest. In the case of detection, the plaintiff must prove that the harm caused by the dangerous or hesitant situation in question can only be remedied by the case of detection. Because the case for determination can be opened without a legal case or right being denied or violated, that is, without any harm being caused, it has emerged as an exception to the need for interest to be born and current.
In order for the claimant to have the benefit (legal benefit) of the immediate determination of the legal relationship, the claimant must first have a right or legal status of the claimant to be present and facing a serious threat. This threat is often posed by the defendant’s behavior. The fact that this threat may pose a danger to the plaintiff is due to the fact that the legal situation of the plaintiff is in hesitation and that this threat may cause harm to the plaintiff (Khanağası, a.g.e., P.133 et al.; same principles, 01.02.2012 day of the General Assembly of Law and 2011/10-642 E.- 2012 / 38K. it has also been adopted in its numbered decisions.).
In other words, the legal benefit of determining a legal relationship immediately depends on the co-existence of the following three conditions::
1 -) a right or legal status of the claimant must have been threatened with a current danger;
2 -) due to this threat, the legal situation of the plaintiff should be in hesitation and this matter should be of a nature that could harm the plaintiff;
3 -) only the determination provision, which has the effect of the final judgment and does not authorize the enforcement of force, should be conducive to eliminating this danger.
As a matter of fact, the 106th of HMK No. 6100 which was in force at the time of the case. in the article;
“(1) through the case of determination, the court is asked to determine whether the existence or absence of a right or legal relationship or a document is a forgery.
(2) The respondent must have an up-to-date benefit that is legally worth protecting in filing this suit, except in exceptional circumstances specified in the law.
(3) material cases alone cannot constitute the subject of the determination case.”in the form of a determination case has been arranged.
According to the provisions of this article, cases aimed at determining whether the existence or absence of a right or legal relationship, or whether a document is a forgery, are called detection cases.
The plaintiff who filed the determination suit has to make clear that there is an up-to-date benefit of legal protection in the case, unlike the EDA case and construction cases, and prove its legal benefit.
Material cases cannot be the subject of a case of determination alone, but they can be the subject of determination for the purpose of determining the existence or absence of a right or a legal relationship.
II. Principle of commitment by demand:
One of the principles that dominates civil law proceedings is the principle of adherence to demand. This principle is clearly stated in Article 26 of HMK No. 6100. Accordingly, the judge is bound by the demands of the parties. He can’t decide anything more than demand or demand. Depending on the situation, the demand may decide less than the result. The provisions of the law are reserved that the judge is not bound by the request of the parties.
In some cases the judge is not bound by the request of the parties. These situations are clearly stated in the law. For Example, 170/3 Of The Turkish Civil Code. the judge may decide on divorce or separation even if the cause of divorce has been proven in the case filed with the request for divorce pursuant to the article.
No. 6100 Of HMK 26. in accordance with the principle of “allegiance to demand” which is stipulated in the article, it is not possible for the dominant parties to decide on the matter which is not demanded by the party. Accordingly, the judge must decide in a manner and scope to meet the demands of the parties. It is determined by looking at the petitions of the parties and generally the petitions of the parties, whether the parties request or not and what the judge may decide.
The principle of allegiance to the demand also imposes an obligation on the judge not to decide more than the demand. This obligation imposed by the principle of allegiance to the judge is also related and in line with the “principle of saving”stated in Article 24 of HMK No. 6100 and the “principle of being brought by the parties” stated in Article 25.
On the other hand, the principle of “adherence to demand” requires that the judge cannot decide anything other than what is requested. The inability to decide something different from the one demanded is determined by comparing the result of the demand and the result of the provision.
III. Employer’s obligation to make employment contract:
Freedom of contract is valid in our legal system and accordingly individuals have the freedom to choose whether or not to make a contract and the person to whom they will contract. However, labour law requires the employer to make an employment contract in some cases due to social reasons, and in this way some limitations have been imposed on the employer’s freedom to make contracts.
30 and 31 of the Labor Law No. 4857. in the articles of employment contract obligations to the employer is also regulated.
30 of the act. pursuant to the first paragraph of the article, private sector employers of fifty or more workers to run workplaces disabled to three percent, four percent and two per cent in the public establishments with disabilities, ex-convict or military law No. 1111, dated 21/6/1927 workers or officers and reserve officers covered by the Law No. 1076 dated 16/6/1927 while doing military service and Backup No. 3713 and dated 12/4/1991-Terrorism Law, Article 21. they are obliged to employ those who are injured in such a way as not to be considered disabled as a result of the terror events mentioned in the article.
30 of the act. according to the fifth paragraph of Article disability disability after workers forced to leave work to take them on again if they wish to shield from their former workplaces, the employer immediately vacancy jobs in Old work or similar if you have them, or empty if other bidders first, by choosing to take a job with the current conditions you are required to. The employer who does not comply with this requirement shall pay compensation in the amount of six months ‘ wages to the former employee who has requested to be hired.
101 of the act if employers are in breach of the obligation to employ disabled and ex-convicted workers in contravention of the said clause. according to the article, they will be punished with an administrative fine.
As such, Labor Law No. 4857 31. in this article, the employer has an obligation to make an employment contract. 31. by Article;
“The employment contract of the worker who has been taken under arms for any reason other than his / her regular military duty or who has quit his / her job because of the work assignment arising from any law shall be deemed to have been terminated by the employer after two months starting from the day he / she leaves his / her job.
In order to benefit from this right, the worker must have worked for at least one year in that job. For each additional year, two days are added as opposed to working more than one year. So much so that the entire period cannot exceed ninety days.
In order to be deemed to have terminated the employment contract, the worker’s wage shall not be processed within the period to be expected. However, the provisions of the special laws in this regard are reserved. Even if the other party has been notified that the employment contract has been terminated by the employer or employee based on another reason arising from the law, the period specified by the law for termination shall begin to work after the end of this period. However, the provisions of this article shall not be applied if the employment contract has been made for a certain period of time and the contract ends spontaneously within the written period above.
If workers who have left their jobs due to any military or legal assignment want to enter the job within two months of the end of this assignment, the employer must hire them immediately if there are vacancies in the old workplace or similar jobs, or by choosing other tenderers for the first job to be vacated, under the conditions at the If the employer does not fulfill his obligation to make an employment contract even though the conditions are sought, he shall pay compensation in the amount of three months ‘ wages to the former employee who requested to be hired.”
According to the law, “any military assignment”is mentioned, the workers who have to leave work not only for regular military service but for all kinds of military assignment can benefit from the provision of the article, as well as those who leave work due to a legal assignment are also covered by the provision.
The employee must apply to the employer within two months of the termination of the said military or legal assignment in order to take advantage of the opportunity set out in Article 31/of the law. The employer has to take the employee whose assignment has ended immediately if there are vacancies in similar jobs, or if there are vacancies in the first job under the conditions at the time.
Return of military service the labor law for workers who are not hired 18 et al. he cannot file an extradition suit based on his provisions. He can’t benefit from job security. Because the contract of employment has been terminated due to military service, the contract of employment is not suspended during the period of active military service and in this case the termination of the contract of employment which does not exist in the return of military service can not be mentioned by the employer (Süzek, P.: Labor Law Renewed 11. Print, Istanbul 2015, p.335).
The employer who does not fulfill the obligation to make employment contracts with former workers who have finished a military or legal assignment, and who does not hire them even though they have conditions, is not subject to an administrative fine, but to a compensation sanction. 31 of the law, indeed. if the employer does not fulfill his obligation to make an employment contract even though the conditions are sought according to the fourth paragraph of the article, he shall pay compensation in the amount of three months ‘ wages to the former employee who requested to be hired.
IV. Evaluation of the concrete event:
The plaintiff claimed that he was conscripted while he was working at the defendant’s workplace, and that his return to military service had not been initiated, and that the defendant had requested that his return to work be decided.
The court determined that the plaintiff’s return from military service was unlawful not to start work by the defendant’s employer.
However, the work of the plaintiff started on 09.03.2010 at the Office of the defendant company and ended on 31.07.2012 on the letter of referral to the Union on 31.07.2012 on the deadline of working on 31.07.2012 that he wanted to resign and leave.
Upon this, the defendant’s employer paid the plaintiff severance payment by accruing on the payroll in July 2012.
In this way, after the termination of the employment contract between the parties, the claimant worker who completed his active military service was demobilized on 01.02.2013; in his petition dated 21.01.2013 and entered into employer records on 23.01.2013, he requested that he be required to return to his duty as of 31.01.2013. The defendant was not hired by the employer in order to comment “not appropriate” on the plaintiff’s said petition.
31/4 of Labor Law No. 4857. if the employer has an obligation to hire the employee who has left the job because of a military or legal duty within the period stipulated in the law, however, if this obligation is not fulfilled, it is not possible for the plaintiff to file a lawsuit with the request for reinstatement since the sanction of the employer’s failure to comply with the obligation
It was further noted that the court’s No. 6100 was the 26th seat of HMK. it is also not possible for the defendant employer to decide that it is unlawful not to start the plaintiff worker on return to military service and to accept the case filed with the request of return to work as a case of determination in contravention of the principle of “allegiance with demand” which is stipulated in the article.
However, the defendant’s request to hire the plaintiff again was not accepted by the employer, so the plaintiff was employed under Labour Law No. 4857, 31/4. it cannot be mentioned that it has legal benefit in making a determination decision since it is required to file an eda lawsuit involving the request for ” compensation in the amount of three months ‘ wages” in accordance with the article.
In this case, the decision to break the special circle adopted by the General Assembly of law should be obeyed, but it was not right to resist in the previous decision.
Therefore, the decision to resist must be broken.
Conclusion: it was decided unanimously on 07.03.2018 that the decision of the defendant’s attorney to resist with the acceptance of the appeals was overturned due to the reasons shown in the decision to break the special office, and if requested, the refund of the Advance Fee for the appeal to the depositor, with the way of Correction of the decision closed.
No Comments