T.C.
SUPREME
GENERAL ASSEMBLY OF LAW
PRINCIPAL NO: 2018/7-179
DECISION NO: 2018/683
DECISION DATE: 4.4.2018

> > THERE IS NO LEGAL BASIS FOR CREATING A QUALITATIVE DIFFERENCE BETWEEN THE WORK BEFORE EMPLOYMENT AND THE WORK AFTER EMPLOYMENT, OR FOR TAKING ACTION AGAINST THE PLAINTIFF BY IGNORING THE WORK BEFORE EMPLOYMENT– THE FACT THAT THE WORKER, WHO IS ECONOMICALLY DEPENDENT ON THE EMPLOYER, HAS NOT FILED A LAWSUIT DURING THE PERIOD OF EMPLOYMENT, CAN NOT BE EVALUATED AGAINST THE WORKER.

4857 / m.5,29/7,53/3,60

Summary: the case is related to the request for collection of Labor receivables. Although the fact that the plaintiff is employed in similar jobs all year by permanent staffing does not change the nature of his previous work, it is clear that the legal exclusion of this work will result in a violation of the principle of equality. Moreover, there is no legal basis for creating a qualitative difference between the work before being staffed and the work after being staffed, or for taking action against the plaintiff as if he had just been hired by ignoring the work before being staffed. On the other hand, it is not possible to evaluate against the worker the fact that the worker, who is economically dependent on the employer, has not filed a lawsuit during the period of his / her employment. In the face of all these determinations and decisions of precedent, it was inconclusive that the plaintiff’s degree and rank should be determined by including the work of the plaintiff in the period of work before the staffing, and the decision to dismiss the case on Written grounds should be taken under the provision of the difference claims, if any.

Case: at the end of the trial due to the “labor receivables” case between the parties; Samsun 2. 04.07.2014 day and 2014/55 E. given by the Employment Tribunal for the dismissal of the case-2014 / 449 K. Court of Cassation 7 upon request by the attorney of the plaintiff to review the appeal of the decision numbered. 15.12.2014 days of the law office and 2014/18320 E.-2014 / 22650 K. by numbered decision;

“…The plaintiff’s attorney requested that the degree and rank of his client be determined by taking into account the duration of his work under the status of temporary worker, stating that while he was working under the status of temporary worker, he was placed on permanent staff in 2001 and that he continued to work under this condition until his retirement, but that the

The attorney of the defendant requested the dismissal of the case by arguing that the demands of the plaintiff had expired and that the work had been started by making the plaintiff’s adjustment according to the relevant term Collective Bargaining Agreement and Additional Protocols, and that it was not possible for the plaintiff to benefit from the provisions of the Collective Bargaining Agreement after his retirement.

The court held that the plaintiff tacitly accepted the new working conditions upon his appointment to the staff, and that after working for many years subject to the mentioned conditions, the demand for the wage adjustment of the previous period was incompatible with the principles of labor law, and that the plaintiff could not benefit from the arrangement in question due to the retirement, in accordance with the protocol dated 26.10.2000 signed between the employer and the Turkish labor union, it was decided to dismiss the case on the grounds that the plaintiff’s past demands were not in place, as it was stated clearly and specifically that the temporary workers in the position of the plaintiff would be transferred to permanent staff over their current wages.

Work carried out at workplaces where work is carried out only during a certain period of the year or where work is concentrated during certain periods of the year, although it is worked all year round, can be defined as seasonal work. The periods in question may be long or short depending on the nature of the work. Work that is not always suitable to employ the same amount of workers and according to the nature of the work carried out in the workplace, where workers work intensively for certain periods each year, but at other periods of the year, labor contracts require deceleration until the beginning of the following year’s operating period is considered seasonal work.

Seasonal employment contracts 11 of the Labor Law No. 4857. in accordance with the provisions of this article, it may be established as a fixed term or an indefinite term. A fixed-term employment contract for a single season ends automatically at the end of the season, in which case the employee shall not be entitled to notice and severance pay.

If, on the other hand, a fixed-term employment contract has been entered into between the employee and the employer in a seasonal work, and in the following years, the employment contract shall be of indefinite duration in accordance with the last paragraph of the mentioned article.

When the scope of the file is taken into consideration, it is understood that the plaintiff’s insurance contributions have been deposited at varying dates and periods each year on the grounds that the work between the parties is of seasonal nature at the beginning, and that the plaintiff’s work has been staffed without change and that the insurance premiums have continued to be deposited Considering the above descriptions of seasonal work together with the determination in question; although the fact that the plaintiff and his friends are employed in similar jobs all year by the defendant administration does not change the nature of their previous seasonal work, the fact that they are ignored by law has unfair consequences. Likewise the staff has become an indefinite-term contracts renewed as chained before being taken by the study staff or personnel work next to the creation of a qualitative difference between the plaintiff and his friends got a new job without previous work ignored by the operation as there is no legal basis whatsoever.

In addition, if the court has referred to the protocol dated 26.10.2000 signed between the defendant administration and the Union of which the plaintiff is a member, it should be noted that the rights granted to workers by The Collective Bargaining Agreement can only be extended in the labor law in favor of the workers, on the contrary, the regulations will not Therefore, it is not possible to give validity to the protocol that results against the worker.

The main reason for the emergence of Labor Law as a sub ( private ) branch of law is that it regulates the legal relations between the parties which are not equal in terms of their structure, although it is still bound to the law of obligations in terms of its general principles. For this reason, it cannot be assumed that the worker, who is dependent on the employer and whose economic future depends on the employer, has tacitly accepted the current practice after the date of his appointment. Likewise, freedom to seek rights is under constitutional guarantee and the time to exercise this right cannot be judged against the rightful owner.

The nature of the work of the courts precedent the decisions taken by our apartment in Mersin 2014/131…140, 306…313, 386, 496…500, 757…761 numbered with the main sentence, Şanlıurfa business…our apartment with a warrant issued by the courts 2013/5838 numbered 6077 main admission decisions, admission decisions by the tribunal granted the work of our Antalya apartment with a warrant based on…2014/8391 numbered 8399, Artvin civil ( Business)…to accept the decisions given by the court in our apartment with a warrant to onanar has finalized based on 10530 2014/10516 numbered.

In the face of all these determinations and decisions of precedent, it has been inconclusive that the plaintiff’s work before the staffing should be included in the working period and the degree and rank of the claimant should be determined and, if any, the difference claims should be ruled.…”

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.:

Verdict: the case is related to the request for collection of Labor receivables.

The attorney of the plaintiff requested and sued the collection of some difference labor receivables, without reserving the rights of excess by determining the level and degree, claiming that the level and degree were determined to be incomplete due to the fact that the duration of his client’s employment as a seasonal worker was not taken into account when he was placed on the staff.

The acting defendant pleaded not guilty.

The case was followed by the deputy of Samsun Metropolitan Municipality where the file was transferred by the transfer liquidation and Apportionment Commission due to the fact that the legal personality of Samsun provincial Special administration was terminated by the Law No. 6360 during the trial.

7 and 22 of the court of Cassation. After evaluating the decisions made by the legal departments, the plaintiff knows the conditions of permanent staffing in accordance with the provisions of the protocol dated 26.10.2000, he cannot request difference wages without taking into account the provisions of the protocol after more than ten years, although the transaction is carried out with his consent, different arrangement was introduced in 2013 with Article 5 of the, in fact, many years have passed after such a request doesn’t fit the rules specified in Article 2 of the Turkish civil code, if the plaintiff refuses to accept the protocol under the protocol, under Article 5 of the protocol of an employment contract by the employer of the defendant (excluding compensation will be terminated by the employer by paying for all of the legal rights stated that the plaintiff did not choose this path, and therefore cannot claim later this, the decision of the General Assembly of case law and law on the evaluation of the entire working period in the determination of the term of seniority and the application in this direction will not lead to the creation of the receivables subject to demand, and in 2013 the collective bargaining agreement and the administration taking such action by accepting the adjustment will not grant the plaintiff such right, because the plaintiff, In accordance with Article 19 of trade unions and collective bargaining Law No. 6356, it was decided to dismiss the case on the grounds that the worker whose union membership ended could not benefit from the adjustment conditions and therefore it was not possible to comment in favour of the worker.

Upon the appeal of the plaintiff’s attorney, the verdict was broken by the decision shown in the title section of the special Office.

7 and 22 of the Supreme Court in addition to the previous grounds of the Local Court. Although there is a difference of opinion among the legal departments, the decision was made to resist on the grounds that the dispute has not been resolved yet and that it has not been resolved by the General Assembly of the law.

The decision to resist was appealed by the acting plaintiff.

The dispute that comes to the General Assembly by way of resistance is gathered at the point where, in the concrete case, the plaintiff worker’s work, which has been in the status of a seasonal worker before being transferred to permanent staff, can not be taken into consideration in determining the degree and rank of the employee as of the date

In the settlement of the dispute, the concept of seasonal work needs to be explained first.

As is known, although the working conditions of seasonal workers are regulated by the labor laws in our labour law legislation, a complete definition of seasonal work is not made and it is not explicitly stated which jobs are seasonal work.

Provisions on seasonal work 29/7 of the Labour Code No. 4857. and 53/3; 60th of the same law. Article 12 of the regulation. and it is included in Articles 4/f of the Law No. 394 on Week holidays.

These provisions do not include the definition of seasonal work, but the definition of work places where work is done at any period of the year, not done at other times or work is reduced and it is stipulated that seasonal employees do not have annual leave rights, but can be included within the scope of collective bargaining agreement.

Based on the regulations described above, the work done in the workplaces where the work is concentrated in a specific period of the year can be defined as seasonal work.

As a matter of fact, in Article 2/b of the Labour Law No. 3008, “a place of work that is full or more active in any period of the year, which is completely out of operation in the other period or decreases its activity” is accepted as a seasonal place of work.

Seasonal work is also defined in the teaching as work in which activity intensifies during certain periods of the year, decreases or stops completely during other periods, and this situation is repeated during certain periods of the year.

The periods in question may be long or short depending on the nature of the work. Jobs that are not always suitable for employing the same amount of workers and which, according to the nature of the activity carried out at work, are employed intensively for certain periods each year but require deceleration of employment contracts until the beginning of the following year’s activity period during the other period of the year, may be considered seasonal work.

13.11.2013 and 2013/22-1170 E. of the General Assembly of seasonal Affairs Law- 2013/1571 K.; 07.03.2012 day and 2011/9-755 E.- 2012/117 K. with 30.11.2011 days and 2011/9-596 E.-2011 / 725 K. according to the nature and structure of the work in the numbered decisions, it is defined as the works that occur during certain periods of the year or that are worked in accordance with the activities that increase during these periods.

It should be stated that whether the work is seasonal work or not, the need to be carefully examined according to the characteristics of the work and the place of work should not be ignored.

On the other hand, another issue that needs to be examined is “equal transaction debt”.

The principle of equal treatment is valid in all areas of law and is a debt recognized by contemporary labour law, which in terms of labour law refers to the obligation of the employer to treat workers equally at work and to apply equal working conditions to workers in jobs of equal value ( Çelik, N.: Business Law Courses, Istanbul 2009, 22. The head s.:177 ).

Equality principle 10 of the Constitution of the Republic of Turkey No. 2709. the article is generally arranged. According to the first paragraph of the said Article, “everyone is equal before the law without discrimination for reasons of language, color, sex, political thought, philosophical belief, religion, sect and so on”.

Likewise, the law No. 5170 dated 07.05.2004 and 10 of the Constitution. in the second paragraph added to the article ” Women and men have equal rights. The state is obliged to ensure the implementation of this equality” provision is included.

This constitutional principle is the 5th amendment of the Labour Code No. 4857 in labour law. it finds its expression in the article.

Law No. 4857 entitled “principle of equal treatment” 5. in the article;

“Discrimination cannot be made in business relations based on language, race, sex, political thought, philosophical belief, religion and sect and similar reasons.

The employer may not take any different action against the full-term worker to the partial-term worker, or against the indefinite-term worker to the fixed-term worker unless there are fundamental reasons.

The employer shall not directly or indirectly take any other action against a worker in the making, creation, application and termination of an employment contract, or for reasons of sex or pregnancy, unless the employer requires biological or reasons relating to the nature of the work.

For a job of the same or equal value, a lower wage may not be decided due to gender.

The enforcement of special protective provisions due to the gender of the worker does not justify the enforcement of a lower wage.

In case of contravention of the provisions of the preceding paragraph in the employment relationship or its termination, the worker may also claim his deprived rights other than an appropriate compensation amounting to up to four months ‘ wages. 31 Of The Law On Trade Unions No. 2821. the provisions of the article are reserved.

20. without prejudice to the provisions of the article, the employee is obliged to prove that the employer has acted contrary to the provisions of the preceding paragraph. However, when the worker presents a situation that strongly indicates the possibility of a violation, the employer is obliged to prove that such a violation does not exist.”the arrangement is given.

Equal trading debt, as a rule, is a debt that occurs after a business relationship is established and prevents the employer from engaging in arbitrary practices ( Yıldız, Gaye B.: Employer’s debt to make equal transactions, Ankara 2008, p. 68 ).

Accordingly, as a rule, the employer must treat the workers working in the workplace equally and apply equal working conditions. The employer is under the obligation not to act differently, to benefit from social assistance and monetary benefits equally, unless there is a justified reason, and to be ex officio aware of the equal transaction debt on public order.

But equal transaction debt does not mean that the employer will treat all workers equally in an absolute way.

The principle of equality for workers subject to different working conditions cannot be mentioned. Discrimination can be made between workers in this situation. However, this must be in accordance with the nature of the work and objective measures ( Çelik, a.g.e., P. 179 ).

The obligation of equal treatment is for workers of the same nature. The employer can create different working conditions based on objective reasons such as the work, expertise, learning and seniority of the worker, as well as subjective reasons such as diligence, ability, merit.

When the concrete event is evaluated in the light of the above explanations; the plaintiff was employed in a part of the year prior to 02.02.2001 with the acceptance that the work was seasonal work, the plaintiff worker, who moved to permanent staff on 02.02.2001, worked continuously at the work place under the Directorate of Rural Services after that date, continued to deposit insurance premiums for the whole year by taking the job, It is understood that he was transferred to Samsun Metropolitan Municipality by the liquidation and Apportionment Commission.

In this case, the fact that the plaintiff is employed in similar jobs all year by permanent employment does not change the nature of his previous work, but it is clear that the legal dismissal of this work will result in a violation of the principle of equality.

Moreover, there is no legal basis for creating a qualitative difference between the work before being staffed and the work after being staffed, or for taking action against the plaintiff as if he had just been hired by ignoring the work before being staffed.

On the other hand, it is not possible to evaluate against the worker the fact that the worker, who is economically dependent on the employer, has not filed a lawsuit during the period of his / her employment.

As a matter of fact, 11.11.2015 days of the General Assembly of the law and 2015/7-1115 E.-2015 / 2541 K.; 29.06.2016 days and 2016/22-1115 E.-2016 / 893 K.; 03.05.2017 day and 2017/22-2094 E.-2017 / 910 K.; 13.12.2017 day and 2016/ 9 ( 7 )-100 E.-2017 / 1688 K. and 13.12.2017 days and 2016 9 ( 7 )-594 E.-2017 / 1694 K. the same conclusion was reached in the numbered decisions.

On the other hand, although the legal personality of Samsun provincial Special Administration, which is the defendant with the provisions of the law No. 6360, was terminated and the case was followed by the deputy of Samsun Metropolitan Municipality, where the file was transferred by the transfer liquidation and Apportionment Commission, it is not correct to write Samsun Special Provincial Administration as the defendant in the title of the decision,

Therefore, according to the mutual claims and defenses of the parties, the minutes and evidence in the file, the necessary reasons described in the dissolution decision, the decision to disrupt the special office adopted by the General Assembly of law should be obeyed, while resistance to the previous decision is against procedure and law.

Therefore, the decision to resist must be broken.