As the Employment Law Department of Esin Attorney Partnership, we are pleased to share with you our monthly newsletter.
This newsletter provides a summary of the recent legal developments in relation to employment matters in Türkiye.
Constitutional Court Decision on Reassessment of Incapacity Rate and Evaluation within the Scope of Vested Right Principle
Decision Publication Date: 20 May 2024
Summary
In the decision dated 21 December 2023 numbered 2019/8609, and published in the Official Gazette dated 20 May 2024 and numbered 32551, the Constitutional Court ("Court") ruled that the incapacity rate determined by the Social Security Institution ("SSI") at the start of the lawsuit filed by the applicant ("Applicant"), who claimed compensation for loss of earning capacity arising from an occupational accident, did not constitute a procedural vested right for the opposing party. The findings obtained as a result of calculations requested from experts should be taken as basis for calculating the incapacity rate, while the incapacity rate calculated by the SSI, which the Applicant stated when filing his lawsuit, does not mean that the Applicant restricted his claims based on this rate. The Court further ruled that the Applicant's right of access to the court was restricted and that the application was admissible.
Important Details
- As a result of an occupational accident at the workplace where the Applicant is employed, the Applicant filed a lawsuit at the court of first instance for pecuniary and non-pecuniary damages in the nature of an indefinite receivable lawsuit, reserving his rights regarding the surplus. Before the Applicant filed his lawsuit, the Occupational Inspection Board of the Ministry of Labor and Social Security determined that the Applicant's accident was an occupational accident, and in the report issued by the SSI following this determination, the Applicant's loss of earning capacity was determined as 14%. During the trial, the employer defendant ("Defendant") objected to the rate determined by the SSI, and the file was sent to the Forensic Medicine Institution ("FMI") for the calculation of the rate of loss of earning capacity. The FMI determined the rate of loss of earning capacity as 19%. Consequently, the Applicant requested that the compensation claim be calculated based on the rate determined by the FMI.
- The court of first instance stated that the Applicant had not objected to the 14% loss of earning capacity rate calculated by the SSI and that a procedural vested right had arisen in favor of the Defendant in terms of the rate of loss of earning capacity. The court sent the file to an expert for the calculation of the fault rates of the parties, and after the fault rates were calculated, the file was sent to another expert for the calculation of the compensation claim. The Applicant objected to the expert report regarding the calculation based on the 14% loss of earning capacity, stating that the calculation should be made by taking into account the 19% loss of earning capacity calculated by the FMI. After the court of first instance rejected the Applicant's objection, the Applicant amended his claim in line with the expert report. The court of first instance ruled that the Applicant had not objected to the rate of loss of earning capacity determined by the SSI, that a procedural vested right had arisen for the Defendant, and that a decision should be made based on the rate of loss of earning capacity calculated by the SSI.
- After the parties filed an appeal against the firstinstance court's decision, the Supreme Court of Appeals upheld the court of first instance's decision.
- Upon the Applicant's individual application, the Court stated that the principle of procedural vested right is a principle that emerged with the Supreme Court of Appeal's case-law consolidation decision. The principle in question represents the fact that after a reversal decision, the courts of first instance cannot make a decision by re-examining the part outside the reversal decision and that the Supreme Court of Appeals is bound by the grounds of reversal stated in the reversal decision. However, the principle in question has gone beyond its purpose by being expanded, and the expanded application of this principle through case-law has no legal basis.
- In this context, the Court argued that the report issued by the SSI was received before the commencement of the judicial process and that the Applicant's failure to object to the report was not a procedural act within the scope of the judicial process. The Court also ruled that the assessment that constituted the basis for the first instance court's decision did not have a legal basis and thus was a disproportionate interference with the Applicant's right of access to the court. The Court accepted the application on the grounds that the Applicant's right of access to the court was violated.
Decision of the Supreme Court of Appeals Regarding the Interruption of the Statute of Limitation in a Lawsuit Filed as an Indefinite Claim
Decision Publication Date: 3 May 2024
Summary
In the decision dated 7 March 2024 with file number 2024/3233, and decision number 2024/4482 published in the Official Gazette dated 3 May 2024 and numbered 32535, the 9th Civil Chamber of the Supreme Court of Appeals ("Court") ruled that overtime work pay can be subject to an indefinite receivables lawsuit and that the statute of limitations for all claims subject to the lawsuit will be interrupted as of the date of the lawsuit.
Important Details
- The plaintiff ("Plaintiff") filed an employment receivables lawsuit in the nature of an indefinite receivable lawsuit before the court of first instance, claiming that he worked overtime for the employer defendant ("Defendant") during his employment period but that he was not paid for the overtime work in question.
- The court of first instance decided to partially accept the lawsuit, stating that the lawsuit was filed as a partial lawsuit and therefore a part of the overtime receivables as of the date the Plaintiff's claim increase was time-barred. Thereafter, the appeal filed by the Plaintiff against the first instance court's decision was rejected procedurally on the grounds that the amount rejected by the court of first instance was below the limit required for an appeal.
- The Ministry of Justice requested that the decision of the court of first instance be reviewed on appeal in the interest of law. In its appeal petition, the Ministry of Justice stated that in cases in which the claim for overtime work pay is not based on written documents and workplace records, but on witness statements, the amount of the deduction to be made from the amount receivable to be calculated at the discretion of the judge is not certain at the beginning of the lawsuit, and the receivable should be accepted as indefinite. In this case, which was clearly filed as an indefinite receivable lawsuit in writing in the petition, it was stated that the statute of limitations had expired for the entire receivable on the date of the lawsuit, and for this reason, the partial acceptance of the case by the court of first instance was erroneous. Thus, the Ministry of Justice requested that the decision be reversed in the interest of the law.
- The Court stated that in cases in which the determination of the amount receivable is at the discretion of the judge, there is a legal impossibility in terms of determining the amount receivable; since it is not possible for the Plaintiff to determine the rate at which the judge will discount the receivable when filing the lawsuit, the Plaintiff can file an indefinite receivable lawsuit in the concrete case. Further, in cases filed in the nature of an indefinite receivable lawsuit, the statute of limitations is interrupted for the entire receivable with the filing of the lawsuit. The Court further stated that it was erroneous for the court of first instance to characterize the lawsuit as a partial lawsuit, partially accepted the lawsuit based on the statute of limitations defense asserted by the Defendant, and reversed the decision of the court of first instance in the interest of law.
Supreme Court of Appeals Decision on the Right of Proof and Defense
Decision Publication Date: 28 May 2024
Summary
In the decision dated 15 April 2024 with file number 2024/5139, and decision number 2024/6725 published in the Official Gazette dated 28 May 2024 and numbered 32559, the 9th Civil Chamber of the Supreme Court of Appeals ("Court") ruled that it is a violation of the right to a fair trial and the right to defense and proof, within the scope of the right to be heard, to commence proceedings before the petitions are submitted and before the first hearing, which is a preliminary examination hearing in the simplified procedure, is held.
Important Details
- The Plaintiff ("Plaintiff") claimed that he had been working for the Provincial Directorate of Migration Management for approximately 5 months at minimum salary within the scope of the work for the benefit of the community project, that his employment agreement was terminated due to the end of the program, and that he was employed as an employee by the defendant ("Defendant"). The Plaintiff filed a lawsuit for employment receivables at the court of first instance with a claim for the collection of the additional payment receivable from the Defendant. In its decision, the court of first instance accepted the Plaintiff's lawsuit and ruled for the collecting the Plaintiff's additional payment receivable from the Defendant.
- The Ministry of Justice requested that the decision of the court of first instance be reviewed on appeal in the interest of the law. In the appeal petition, the Ministry of Justice stated that the ruling in the first hearing, which was opened before the submission of petitions and without a proper preliminary examination, meant that the right to proof and defense was not observed and the right to be heard was violated.
- The Court stated that the right to be heard is within the scope of the right to be heard legally, that the right to be heard legally is also applicable to disputes subject to the simplified procedure, and that the assignment of the file to the expert without a preliminary examination hearing in the concrete case was considered a violation of the right to a fair trial and the right to be heard legally. In the interest of law, the Court reversed the decision of the court of first instance.
Announcement from the SSI Regarding the 'Redetermination of the Instalment Payment Periods in Laws No. 7256 and 7326 for Employers and Insured Individuals in Places Declared as Force Majeure Due to the Earthquakes in Kahramanmaraş Province'
Announcement Publication Date: 27 May 2024
Summary
Pursuant to the announcement dated 27 May 2024 published by the General Directorate of Insurance Premiums of the Social Security Institution Presidency, the state of force majeure in Adıyaman, Hatay, Kahramanmaraş and Malatya provinces, and in Gaziantep province's İslâhiye and Nurdağı districts, which was to expire on 30 April 2024, has been extended until 31 August 2024. With Presidential Decree ("Decree") dated 24 May 2024 and numbered 8515, published in the Official Gazette dated 25 May 2024 and numbered 32556, the installment payment periods in Law No. 7256 on the Restructuring of Certain Receivables and Amendments to Certain Laws and Law No. 7326 on the Restructuring of Certain Receivables and Amendments to Certain Laws have been redetermined.
Important Details
- Pursuant to the Decree, the payment period of the first installment for employers and insured individuals in Adıyaman, Hatay, Kahramanmaraş and Malatya provinces, and in the İslahiye and Nurdağı districts of Gaziantep province, which were structured in accordance with Laws No. 7256 and 7326 and whose due dates fall between 6 February 2023 and 31 August 2024, has been extended until the month following the end of the force majeure event. Meanwhile, subsequent installments will be paid monthly periods after this month.The Decision will enter into force as of 21 December 2024.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.