19 Apr Uncertain Dept Claimson Workers’ Receivables
Summary:
as a rule, it is not possible to make a determination in the form of a certain or indefinite claim from the beginning with respect to receivables arising from labor law. For this reason, the possibility of an indefinite credit lawsuit in labor law depends on the existence of the necessary conditions for the opening of this lawsuit. If these conditions exist, an indefinite claims lawsuit may also be filed in labor law, or it may not be filed. The same is true for partial litigation.
In the light of the explanations made above, the evaluation of the case in terms of indefinite receivables taking into account the characteristics of the concrete event subject to the case at hand.;
The case is the 107th of Law No. 6100. there is no doubt that it was opened as an indefinite Credit case in accordance with the article. In terms of overwork and general holiday receivables, the plaintiff is able to determine how many hours a week he or she is working and what General holidays he or she is working, but is not able to know at what rate the judge will discount his or her discretion from the calculated amount. For this reason, overwork and general holiday receivables may be subject to indefinite receivables litigation.
T.C.
Supreme
22. Legal Department
Principal No: 2014/28532
Decision No: 2016/1243
K. Date: 20.1.2016
Y A R G I T A Y I L A M I
Tribunal : Employment Tribunal
Lawsuit: the plaintiff-counter-defendant requested to pay severance pay, overtime, national holiday and general holiday and week holiday fees, while the defendant-counter-plaintiff requested to collect notice compensation.
The court decided against accepting the original case, and the case was dismissed.
After hearing the report issued by the examining magistrate for the case file, the file was examined, the need was discussed and considered, although it was appealed by the lawyers of the parties during the sentencing period.:
Y A R G I T A Y K A R A R I
Plaintiff Counter-Defendant deputy, the case No. 6100 of the law of Civil Procedure 107. in accordance with the provisions of the indefinite claim determination and collection case, the plaintiff 10.05.2007-30.04.2011 as a non-stop driver working with a monthly fee of 900,00 TL, the contract of employment by the plaintiff worker is constantly late payment of salaries, the job description is wanted to be employed and other reasons justified termination, six days a week only Sunday holidays 08: 30-19: 30 hours, , He demanded the collection of severance pay and some labor payment from the defendant, stating that he was working on other national holiday general holidays except October 29, and signed a release with the promise that all rights would be paid.
The defendant’s counter-plaintiff attorney stated that the plaintiff resigned from the defendant’s workplace on 30.04.2011, that the plaintiff terminated his employment contract for a new job, not for justified reasons, that the plaintiff and other workers received their Saturday salaries, that the plaintiff was sent out of town outside of working hours, that the defendant’s workplace was closed during the national holiday holidays, that the, the plaintiff has requested that the defendant leave his job and leave his employment without complying with the notice period and that the case be dismissed, and that the counterclaims compensation be collected from the counterclaims of the plaintiff.
The court decided to dismiss the case against the partial acceptance of the case based on the evidence collected and the expert report.
Attorneys for the parties appealed the decision.
1-according to the legal reasons on which the decision is based by the evidence collected in the file, it was necessary to decide on the rejection of all appeals of the defendant and all appeals of the plaintiff outside the scope of the following clauses.
2-the dispute between the parties, which must be resolved first, is gathered at the point of whether the case carries the necessary conditions for opening the case in the form of an indefinite claim.
Act No. 6100, which came into force on 01.10.2011, is the 107th. with the article, an indefinite claim and determination case was accepted as a new type of case not included in the law of Civil Procedure No. 1086.
Act No. 6100, 107. by Article,
“(1) where it is not expected or impossible for the creditor to determine the exact amount or value of the receivables at the date of the case, the creditor may file an indefinite claim by specifying the legal relationship and the minimum amount or value.
(2) as soon as it is possible to determine the exact amount or value of the claim as a result of the information or investigation provided by the opposing party, the plaintiff may increase the claim stated at the beginning of the case without being subject to the Prohibition of the extension of the claim.
(3) in addition, where a partial eda case can be filed, a determination case can also be filed and in this case legal benefit is assumed to exist.”
This article, which is not included in the government bill, was introduced by the Justice Commission of the Grand National Assembly of Turkey on the grounds that the person who is in a situation of seeking rights for a claim whose amount or value cannot be fully determined from the beginning, should be protected as widely as possible within the framework of freedom of
In order for the case to be opened in the form of an indefinite claim, the amount or the value of the claim subject to dispute as of the date of the case to be opened must not be determined by the plaintiff. Failure to determine must be based on the fact that the determination of quantity or value is not really expected of the claimant, even though he has given the necessary attention and care, or objectively impossible.
“In order for the creditor to file such a lawsuit, it must not be possible or objectively impossible for him to truly determine the exact and precise amount or value to which he would sue. If the amount of the case to be filed is known or can be determined, such a case cannot be filed. Because, as sought in every case, legal benefit will be sought here, in such a case can not be mentioned that there is legal benefit. In particular, considering the new provisions relating to the partial case and considering them together, it is unacceptable to resort to this method in cases where it is possible to be determined from the beginning.”in the form of a statement, if the claim is of a specific or identifiable nature, it is indicated that it is not possible to take advantage of the opportunities provided by this case by filing an indefinite claim.
It is not possible to make a definite classification as to which cases the claim is uncertain, in which cases it is certain or determinable, and it is necessary to take into consideration the characteristics of the concrete event in terms of the receivables subject to each case.
107/2 of Law No. 6100. in the article, the criteria guiding the solution of the problem are given. In the paragraph of this article, when it is possible to determine the exact amount or value of the claim as a result of the information provided by the opposing party or the investigation, the plaintiff may increase the demand stated at the beginning of the case without being subject to the Prohibition of the extension of the claim, and in the reason of the article, “the
In cases where the plaintiff does not have the necessary information and documents to determine the amount or value of the claim, and it is (indeed) impossible for the claimant to reach these documents during the preparation period of the case, and thus the determination of the amount of the claim will be made possible by the submission of the information and
Just because there is a dispute between the parties in terms of the amount of the claim does not mean that the determination of the result of the claim cannot be expected from the plaintiff. The important thing is that objectively determining the result of the claim cannot be expected from the plaintiff. In the event that only the amount of receivables is deemed to be disputed or disputed between the parties is sufficient for an indefinite receivables lawsuit, almost all cases must be considered as indefinite receivables litigation, which is contrary to the purpose of the law. Because there is already a dispute, a lawsuit is filed and the dispute comes before the court. What matters is whether the plaintiff has the opportunity to make his claim specific. Here, it should be noted that the determination of the claim and its provability should also be evaluated. It is objectively possible for the plaintiff to determine the claim he has requested, but if it is not possible for him to prove the claim he can determine, with the proof (in his possession) provided for by law, it cannot be mentioned that there will also be an indefinite claim case. Because the determination of a claim and its proof are separate things. The plaintiff may determine very clearly what the subject of the claim will receive, but may not always be in a position to prove it. The acceptance of the contrary may lead to a situation contrary to both the purpose of the law and the general principles, such as turning any proof-challenged claim into an indefinite claim.
In cases where the determination of the amount of the claim depends on the examination of the evidence to be made during the investigation phase, expert examination or other transactions such as Discovery, an indefinite claim may be filed. However, it is not enough for an indefinite Credit case to be filed to go to an expert examination in a case. If the plaintiff is able to determine the amount of the claim when filing a lawsuit, even though a case is referred to an expert, an indefinite claim cannot be filed.
Categorically, it cannot be said that a particular type of lawsuit or a lawsuit filed by certain individuals is a specific or indefinite claim from the beginning. The case for indefinite receivables must be determined by applying the criteria for this case to the concrete event.
In cases where the judge is given discretion in determining the amount of the claim (e.g. Turkish Code of Obligations No. 6098 md 50, 51.56), it should be assumed that it is impossible for the plaintiff to determine the exact amount or value of the claim as of the date of the case. For example, in the application of labour law, Yargitayca more work, weekends, national holidays and public holidays are not based on written records and workplace documentation fee receivables, based on witness accounts, if it is taken into account the time that is to be appreciated and should be made after considering the amount you get discount it is accepted that a proper appreciation. In this case, the amount of credit calculated based on the testimony of the judge in accordance with the discretion of the discount rate is not determined from the beginning, the credit should be considered uncertain.
With the Law No. 6100, the freedom to seek rights in respect of indefinite receivables was extended by granting the possibility to sue for indefinite receivables in the framework mentioned above; although the possibility to file partial lawsuits without any legal benefit in connection with this was limited, it was not completely abolished.
From time to time, it is observed that the limit in the new arrangement regarding the indefinite claim case and partial case, adopted together with the Law No. 6100, is not fully determined and that one is used instead of the other. However, the purpose and nature of these two cases are separate. If the claim is specific or determinable, an indefinite claim cannot be filed; however, partial litigation is possible if there are conditions.
Considering that the law limits the possibility of partial litigation but does not completely eliminate it, it is possible to open partial litigation for certain receivables, even if no indefinite claim can be filed, when the conditions are met and legal benefits are found. Otherwise, only two possibilities can be mentioned, either in the form of an indefinite claim lawsuit or a certain full claim lawsuit, that is, in the case of the law No. 6100 on the partial case 109. the actual implementation of the provision in the article shall not be in question. Because, in the case of indefinite receivables, a lawsuit can be filed using the facilities provided by the indefinite receivables; even if the receivables are certain, then only a full eda lawsuit can be filed. However, due to the principle that the legislator will not engage in any nonsense, a partial lawsuit can be filed considering that a partial lawsuit has been made with the mentioned article and considering the limitations in the law.
At this point, it should be clarified that, in case the case is opened as an indefinite Credit case in the petition, although the conditions are not available, the plaintiff should be dismissed without a period of time for the absence of legal benefit. Because, while it was possible to determine the claim, the law did not permit such a case to be opened. In such a case, the case should be dismissed due to the lack of legal benefit in filing an indefinite claim, and no additional time should be given. For this reason, the demand here is clear, therefore 119/1 of Law No. 6100. it is not possible to give time by applying the article; the case should be dismissed due to the lack of legal benefit, since the indefinite Credit case has been filed even though it should not have been opened, and the deficiency in this matter cannot be completed by giving time.
The legal benefit here is not a legal benefit that will be completed later. Because the legal benefit that was not present at the time when the case was filed is not a legal benefit to be completed in a case where this is clearly known by the court. The acceptance of the contrary shall mean, in fact, that the result of the open claim shall be changed by the claimant by giving time and that additional means shall be provided to the claimant for the provision of the legal benefit which is not available in terms of procedure; such a case shall be contrary to the principle of equality between the parties. Furthermore, if a minimum amount is indicated in the case filed and it is understood that it is a part of the claim, it cannot be understood whether it is an indefinite claim or a partial case with a certain claim, in this case 119/1 of Law No. 6100. the result of the request shall not be explicitly stated in the manner in which the article seeks. 119/2 of the same law, if the claim, the type of claim and the nature of the case are not clearly understood, if the claim is ambiguous. in accordance with the article, the plaintiff should be given a definite period of one week to indicate whether his request is an indefinite claim or a partial case. After this given period, a path must be followed according to the plaintiff’s explanation of his request. If the claim is explained by the plaintiff in the form of an indefinite claim, but does not actually carry the conditions of an indefinite claim, then it should be acted on as above and the case should be dismissed for lack of legal benefit. If the claim bears the conditions of the indefinite claim case after the announcement, the case should be decided by executing according to the results of this case, and if the claim bears the terms of the partial case, according to the results of the partial case (decision no.2012/30463 basis 2012/30091 of our department dated 31.12.2012). 110 of the law No. 6100. 297/2 of the same law, in the case of a stack of cases (objective merger of cases), which is defined as the plaintiff putting forward more than one principal request against the same defendant independently of each other in the same lawsuit petition, it is accepted that there are as many cases as the number of requests. in this case, it will be necessary to evaluate whether the claims put forward in the petition are indeterminate claims or not separately in respect of each claim, since the provision must be made separately in respect of each claim.
As a result of all these explanations, it should be noted that it is not possible and as a rule to make a determination in the form of a specific or indefinite claim from the beginning in respect of receivables arising from labour law. For this reason, the possibility of an indefinite credit lawsuit in labor law depends on the existence of the necessary conditions for the opening of this lawsuit. If these conditions exist, an indefinite claims lawsuit may also be filed in labor law, or it may not be filed. The same is true for partial litigation.
In the light of the explanations made above, the evaluation of the case in terms of indefinite receivables taking into account the characteristics of the concrete event subject to the case at hand.;
The case is the 107th of Law No. 6100. there is no doubt that it was opened as an indefinite Credit case in accordance with the article. In terms of overwork and general holiday receivables, the plaintiff is able to determine how many hours a week he or she is working and what General holidays he or she is working, but is not able to know at what rate the judge will discount his or her discretion from the calculated amount. For this reason, overwork and general holiday receivables may be subject to indefinite receivables litigation.
In respect of the severance pay subject to dispute, as clearly understood from the content of the claim, the plaintiff may determine the working period, the most recent paid fee, the amount of monthly fees he claims to receive. Additional money or social benefits that can be measured with money can also be determined in the monthly fee to be based on compensation calculation. In this case, severance pay is not an indefinite credit. It is understood that the receivables subject to litigation are in fact identifiable receivables and cannot be subject to indefinite receivables, and that the decision by entering into a written basis was erroneous and required to be annulled while the case should be rejected due to lack of legal benefit in respect of severance pay.
3-Az as described above, it is understood that overwork and general holiday receivables are receivables that can be subject to indefinite receivables and that an indefinite receivables lawsuit is filed by the plaintiff’s attorney and the request is made; in the indefinite receivables case, the statute of 6100 is discontinued because the statute of limitations on the entire 107/2. in accordance with the article, increasing the demand is considered as breeding and it is not appropriate to take into account the statute of limitations def against breeding. Since the amounts requested by the request increase petition will not be expired, the conclusion of the provision should be established according to these amounts and it is erroneous and necessary to break it.
Conclusion: it was decided by a majority on 20.01.2016 that the provision was overturned due to the reasons described above and that the appeal fee received in advance was returned to the relevant person if it was a request.
If it is concluded that the conditions for filing an indefinite claim suit are not realized by the court despite the fact that the case has been opened in the form of an “indefinite claim suit”, the dispute is gathered at the points whether the legal benefit requirement for the type of case is a condition for subsequent completion of a case.
As is known, the 6100 into force on 01.10.2011) in Article 107 of the code of Civil Procedure; a new trial that are not included in Mulga type and 1086 law is “vague claims” is placed on the concept of this case and the “case fixing” that can be opened as it is accepted. According to the Article 107 in question, the claimant; where it is not expected or impossible to determine the amount or value of the claim “fully and precisely” as of the date of the case, it may file an indefinite claim by specifying the legal relationship and a minimum amount or value. As soon as the counterparty is in a position to determine the exact amount or value of the claim as a result of the information and/or documents or investigation, the plaintiff may increase the amount of the claim stated in the petition without being subject to the Prohibition of extending the claim. In addition, in accordance with the provision of this article, the plaintiff may proceed to open the indefinite receivables case in the form of a determination case instead of substituting it as a case of eda. To summarize, if there are conditions for filing an indefinite claim, the plaintiff may file an indefinite claim (eda case) in the sense of the first paragraph of Article 107, or a determination case (md.107/3) or partial case (md.109) will be able to resort to opening ways.
Although not included in the government bill, it is observed by the Justice Commission of the Grand National Assembly of Turkey that this article of law is regulated and that it is aimed to protect the rights of the person who has to sue in order to obtain a claim for which the amount or value of the claim has not been fully determined, especially in terms of In this respect, based on the provision of the law; in order for an indefinite claim to be filed, the amount or value of the claim subject to dispute must not be determined “fully and precisely” by the plaintiff as of the date of the case. However, in the light of the explanations in the article, it can be said that the state of non-determination here must depend on objective conditions. In other words, even if the plaintiff has sufficient legal knowledge and the ability to make calculations, the exact and precise determination of the amount or value to be received without trial should not be expected from him objectively. It is observed that the provision of the above mentioned paragraph of Article 107 in this regard is important both in terms of a clearer understanding of the objectivity criterion and in terms of determining the path that the plaintiff can follow from the moment the “uncertainty” condition is eliminated.
When it comes to how the conditions of indefinite receivables litigation and meanwhile objectivity should be understood in cases relating to worker receivables;
As is known, issuing documents concerning the rights and obligations of Labor and Social Security Law between the employee and employer, sending them to the relevant institution in accordance with the legislation, is essentially an obligation of the employer (Labor Law No. 4857 md. 8, 32, 37, 67, 75.). At this point, can it be said that the conditions for filing an indefinite claim suit and the rules of proof law have no relation to each other? Contrary to the majority opinion of the chamber; in our opinion, it is not possible to answer this question positively in the face of the clear provision of the second paragraph with the phrase “fully and definitively” in the first paragraph of Article 107. Whether it is due to the plaintiff’s lack of information and equipment, or to the need for complex transactions, it is of course not true to say that the claim is uncertain in any case requiring the receipt of an account report. However, it should be accepted that the claim cannot be determined “fully and precisely” due to the lack of access to the information and documents in the possession of the opposing party in the case of the petition, and where this is embodied, the way to file an indefinite claim may be applied.
In the opinion of the majority of the apartment; on the one hand, the case filed by certain other persons or categorically a part of the types of claims cannot be over emphasizes that from the start not to mention while attempting specific or vague; on the other hand, you would get severance pay annual leave with receivables as “identifiable” bet, vague claims be subject to adoption in our opinion represents a contradiction. Because, even though there is no legal basis, it is not a correct solution against the phrase “exactly and precisely” in the provision of the law to conclude that an indefinite claim cannot be filed by mentioning that the claim can be determined. For this reason, if the plaintiff can concretely reveal in his petition that for what reasons he cannot determine the amount or the value of the claim fully and precisely, the type of claim should not be of any importance in order to open the case as an indefinite claim.
If you need to embody the subject;
When it is assumed that the employee has been working at the workplace for ten years with a monthly wage of £ 1000 and has not used the annual leave of the last year, an indefinite claim is filed in a lawsuit regarding the termination and notice compensation and that such a case is not possible to be accepted as an indefinite claim. But the plaintiff said that some periods of his nearly ten-year study were carried out uninsured; when the court asserts that some of the works were reported to the Social Insurance Institution as incomplete and the defendant from different workplaces, that some of his wages were paid by hand, that his annual leave was made available in pieces, scattered and incomplete; that there was no document on the account of the way, food and clothing assistance provided by the workplace; that the records
According to the arguments put forward in the majority opinion of the chamber, even in such a case, it does not seem possible to open the case as an indefinite claim. Because, according to the said opinion, as the provability of the case is a completely different matter, it is necessary to acknowledge that even in this case there are no conditions for filing an indefinite claim. However, the arrangement of Article 107 and the very clear explanation of the provision on the subject do not seem to be conducive to such an interpretation. It is not in our opinion that the solution style stated should be adopted with the idea that the legislator’s opinion is in the same direction. It is not acceptable to comment on the grounds of the law or the default purpose of the legislator in a way that clearly contradicts the text of the law.
In addition to this, in an indefinite claim case concerning severance and notice compensation and annual leave fee; in case of an indefinite claim lawsuit filed by the respondent employer, the case should be opened as an indefinite claim case; indeed, the worker is required to be employed for one term without insurance; his wages can vary every month; he has not been paid a fixed wage for a long time; ; can it be ruled by the local court that the case cannot be subject to an indefinite claim? In our opinion, in such a case, the rejection of the case on the grounds of lack of legal benefit is not correct, should be accepted as the existence of indefinite claim case conditions, by betting that “the claim can be determined approximately” or by mentioning the difference of the law of proof.
On the other hand, in Article 114 of the law No. 6100, the legal benefit of the plaintiff in filing a lawsuit is accepted as a condition of the lawsuit; it is assumed that the legal benefit of the plaintiff is present in the determination cases related to indefinite receivables (md.107/3). In our opinion, when an indefinite claim is filed, if it is disputed whether the claim is certain or not, in order to clarify the matter and determine whether there is legal benefit, the second and third sentences of the second paragraph of Article 115 should be executed and the plaintiff should be given a definite period of time.; it will be effective both in terms of procedural economics and Prevention of victimization of persons.
For the reasons described above, the opinion of the Department (2) was not taken into consideration. 20.01.2016
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