M.D., who started working in a production facility in 1994, had the shock of his life when he went to the hospital in July 2017 and found out that his insurance had not been deposited. Thereupon, M.D., who terminated his employment contract and left the job, knocked on the door of the Labor Court.
He filed a lawsuit demanding that the wage slips were prepared at the minimum wage, that there were unpaid wage receivables, and that he was to collect severance and notice pay, overtime pay, wages and annual paid leave receivables. The defendant operator requested the dismissal of the case, arguing that the plaintiff worked for the minimum wage shown on the payrolls and reported to the insurance in the periods between the insurance employment declarations and the employment termination declarations, that he resigned in 2017, and that he had been working seasonally for many years due to the lack of jobs.
The Labor Court decided to partially accept the case on the grounds that the plaintiff worked uninterruptedly for 23 years and 2 months at the defendant workplace between 1995 and 2017, that the plaintiff was entitled to severance pay since the employment contract was terminated by the plaintiff for just cause, and that his wage and annual paid leave request was also justified.
The defendant employer's lawyer appealed the decision. The Regional Court of Justice pointed out that the burden of proving the length of service is on the plaintiff and that in the absence of written evidence, conclusions should be made based on witness statements. On the grounds that the plaintiff's witnesses were close relatives of the plaintiff and that they had not worked with the plaintiff until the termination period, therefore, according to the Social Security Institution (SGK) records, the plaintiff had worked intermittently for 13 years, 2 months and 25 days, the appeal application was accepted and the First Instance Court decided to partially accept the case by abolishing its decision and making a new judgment on the merits. When the plaintiff worker appealed the decision, the 9th Civil Chamber of the Supreme Court of Appeals stepped in.
In the expert report, it was reminded that according to the witness descriptions and the scope of the file, in the first option, the plaintiff's life was calculated as 23 years and 2 months, and in the second option, the calculation was made based on 13 years, 2 months and 25 days in line with SSI records. It was emphasized that the Labor Court relied on option 1, which accepted that the plaintiff's employment was 23 years and 2 months uninterruptedly according to witness statements. It was stated that the Regional Court of Justice's witnesses were the plaintiff's brothers and that they did not work together with the plaintiff until the termination period, therefore, according to the SSI records, it was accepted that the plaintiff had worked intermittently for 13 years, 2 months and 25 days, and reached a conclusion according to the 2nd option in the expert report.
The following statements were included in the decision of the Supreme Court, which is good news for those who narrowly missed EYT due to the missing number of days;
"İ.D, one of the plaintiff's witnesses, who stated that he is the plaintiff's brother within the scope of the file, stated that he started working as an apprentice at the defendant workplace in late 1989 and that he worked as a cutter in the production department from 1993 until February 2006. He stated that the plaintiff started working at the defendant workplace through him in April-May 1994; he made a statement confirming the date of the plaintiff's first employment and the fact of uninterrupted employment at the defendant workplace. The plaintiff's witness İ.D. is only related to the plaintiff. Since there is no reason why his statement as a witness should not be taken into consideration, and considering the witness's service period in the defendant workplace, it should be accepted that the plaintiff worked uninterruptedly from 01.05.1994 to 31.01.2006 in the defendant workplace, and the decision should be reversed and the file sent to the Regional Court of Justice.
On the other hand, it was stated in the decision that the following records and evidence could be taken into account when determining the working period;
"SGK records, employer and workplace records, documents showing entry and exit to the workplace, internal workplace correspondence, testimonies of people working in the workplace, testimonies of employees in neighboring workplaces and other evidence within the scope of the file."
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