Supreme Court Of The Republic Of Turkey 22.Legal Department Basis: 2019 / 6983 Decision: 2019 / 17337 Decision Date: 26.09.2019

Summary: in a concrete case, the defendant’s employer from the beginning of the court electricity generation A.P. The decision to determine that it is the General Directorate is in accordance with the scope of the file and the violation notice. Since there is no employee in the workplace of the defendant employer who is not a union and does not benefit from the collective bargaining agreement, which can be a precedent for the plaintiff; there is also no hit in the rejection of claims arising from the difference in wages determined by the plaintiff’s difference in wages. But the plaintiff has been accused of producing electricity from the start.P. according to the worker accepted; as stated in the cancellation notice, it is necessary to calculate and make provision for additional payment over the fee it actually receives. The decision to deny that he would receive additional tediye without this direction was wrong and required reoffending.

(4857 P. K. m. 32)

Case and decision: the decision made as a result of the case between the parties was requested by the attorney of the plaintiff to examine the appeal, and it became clear that the appeal request was in duration. After hearing the report issued by the examination Judge for the case file, the file was reviewed, discussed and considered:

Summary Of Plaintiff Request:

The attorney of the plaintiff claimed that the client employee works as a kayden sub-employer employee in the defendant’s workplace, that the relationship between the actual employer and sub-employer is based on muvaza, that his client should also benefit from the financial rights provided by the defendant to his employees, and that his client will receive some labor along with the difference of wages, determining that the real employer is the defendant from the very beginning.

Summary Of Respondent Response:

The defendant’s attorney requested that the case be dismissed.

Summary Of Court Decision:

Based on the collected evidence and expert report, the court decided to partially accept the case.

After the appeal of the decision by the defendant, our department decided to reject other appeals, asking whether there is a precedent worker who performs similar or identical work to the plaintiff, but does not benefit from the collective bargaining agreement, examining how acceptance of the amount of monthly salary was achieved in precedent files, considering that the fee was reached with a coefficient of 73.22 TL based on the determination of the fee in terms of the concrete file, and the defendant reported that both the driver purchase was not made after 2003 and the fee for the drivers received after 2003, it was decided that this contradiction should be resolved by asking the defendant and the plaintiff’s fee should be determined in accordance with the audit.

In accordance with the violation, the court determined how the agreed fee was reached in the precedent files, but at the request of the plaintiff’s Deputy, it was decided to partially accept the case based on the calculation made on the basis of the daily wage in the labor fair list reported by the Supreme Science Council of the Ministry of Environment and Urbanism.

The decision on appeal of the denial of the appeal by the defendant appeals the decision dairemizce poet, given precedent to the plaintiff the defendant employer in the workplace that may be non-union and a worker’s employees that do not benefit from collective bargaining agreements, according to a notice from the plaintiff’s fee actually paid and the wage gap over receivable detected with the rejection of their claims should be taken under a provision of the receivables if you have unpaid labor on the grounds that it was decided to corruption.

In accordance with the violation, the court found that the plaintiff’s employer from the very beginning was the defendant’s electricity generation A.P. With the determination that it is the General Directorate, it is decided to reject the receivables subject to the lawsuit.

Appeal:

The plaintiff’s attorney appealed the decision.

Reason:

1-according to the articles in the file, the decision was appropriate to overturn and there was no lack of appreciation of the evidence, it was necessary to decide on the rejection of all appeals of the plaintiff outside the scope of the following bend.

2-in a concrete case; from the very beginning of the employer of the plaintiff by the court, the defendant electricity generation A.P. The decision to determine that it is the General Directorate is in accordance with the scope of the file and the violation notice. Since there is no employee in the workplace of the defendant employer who is not a union and does not benefit from the collective bargaining agreement, which can be a precedent for the plaintiff; there is also no hit in the rejection of claims arising from the difference in wages determined by the plaintiff’s difference in wages. But the plaintiff has been accused of producing electricity from the start.P. according to the worker accepted; as stated in the cancellation notice, it is necessary to calculate and make provision for additional payment over the fee it actually receives. The decision to deny that he would receive additional tediye without this direction was wrong and required reoffending.

Conclusion: a unanimous decision was made on 26.09.2019 to overturn the Appeal decision for the reason written above, to return the appeal fee received in advance to the relevant person on request.