T.R. JUDICIARY
22. Law Office
Basis: 2019/ 7019
Verdict: 2019 / 17351
Decision Date: 26.09.2019
SUMMARY: In the concrete case; From the very beginning, the defendant Elektrik Üretim A.Ş. The decision to determine that he is the General Manager is in accordance with the scope of the file and the decision of reversal. Since there is no non-union worker who can set a precedent for the plaintiff and does not benefit from the collective bargaining agreement at the workplace of the defendant employer; There is no misconduct in rejecting the claimant’s claims for difference receivables and claims arising from the wage difference determined. However, the plaintiff from the beginning, Elektrik Üretim A.Ş. as the employee is accepted; As stated in the annulment notice, the additional payment receivable over the actual fee must be calculated and decreed. The decision to reject the additional payment claim without taking this aspect into account was wrong and required to reverse it.
(4857 S. K. Art. 32)
Litigation: The decision made as a result of the lawsuit between the parties was requested by the plaintiff’s attorney to be examined on appeal, and it was understood that the appeal was within the time limit. After listening to the report prepared by the Investigation Judge for the case file, the file was examined, the necessary was discussed and considered:
Summary of Plaintiff’s Claim:
The plaintiff’s attorney, by asserting that the client worker works as a dematerialized subcontractor worker at the workplace belonging to the defendant, that the relationship between the main employer and the subcontractor is based on collusion, and that his client should also benefit from the financial rights provided by the defendant to his own workers, by determining that the real employer of his client is the defendant from the beginning, the difference wage He requested that some labor receivables be taken under provision along with his receivables.
Summary of Respondent’s Response:
The defendant’s attorney requested that the case be dismissed.
Summary of Court Decision:
Based on the evidence gathered and the expert report, the court decided to partially accept the case.
Upon the defendant’s appeal of the decision, our Department decided to reject other appeals and to determine the wages of the plaintiff, asking whether there is a precedent worker who does the same or the same job as the plaintiff but does not benefit from the collective bargaining agreement, examining the issue of how the monthly wage is accepted in the precedent files, the fee in terms of the concrete file. Clarifying how the fee was reached with the coefficient of 73.22 TL, which is the basis for the determination, and considering that the defendant did not purchase drivers after 2003 and the fee was reported for the drivers bought after 2003, this contradiction should be resolved by asking the defendant, and the plaintiff’s wage should be determined in an auditable manner. decided.
The court, which complied with the reversal, determined how the wage accepted in the precedent files was reached, but upon the request of the plaintiff’s attorney, the case was partially accepted based on the calculation made on the basis of the daily wage in the labor market list reported by the Ministry of Environment and Urbanization, High Science Board.
Upon the defendant’s appeal of the decision, our Department decided to reject other appeals, and since there is no worker in the defendant employer’s workplace that can set a precedent for the plaintiff and does not benefit from the collective bargaining agreement; it was decided that the claimant’s claims for difference due to the difference in wages and the wage difference determined should be rejected and that the unpaid labor receivables, if any, over the actual wage should be ruled.
The Court, which complies with the annulment, decided that the defendant Elektrik Üretim A.Ş. It was determined that the receivables subject to the lawsuit were rejected, as it was determined that he was the General Manager.
Appeal:
The plaintiff’s attorney appealed the decision.
Reason:
1-According to the texts in the file, the decision being suitable to be overturned and there is no inaccuracy in the discretion of the evidence, it was necessary to reject all the appeals of the plaintiff outside the scope of the paragraph below.
2-In the concrete case; From the very beginning, the defendant Elektrik Üretim A.Ş. The decision to determine that he is the General Manager is in accordance with the scope of the file and the decision of reversal. Since there is no non-union worker who can set a precedent for the plaintiff and does not benefit from the collective bargaining agreement at the workplace of the defendant employer; There is no misconduct in rejecting the claimant’s claims for difference receivables and claims arising from the wage difference determined. However, the plaintiff from the beginning, Elektrik Üretim A.Ş. as the employee is accepted; As stated in the annulment notice, the additional payment receivable over the actual fee must be calculated and decreed. The decision to reject the additional payment claim without taking this aspect into account was wrong and required to reverse it.
Conclusion: It was unanimously decided on 26.09.2019 that the appealed decision be OVERFINED for the reasons written above, and that the appeal fee paid in advance would be returned to the relevant person upon request.
