10. Legal Department 2021/1434 E. , 2021/12473 K.
“Text Of Jurisprudence”
District Court of Justice : … District Court of Justice 11. law office
No : 2020/551-2020/1945
Court of First Instance : … 8. Employment Tribunal
The lawsuit is related to the request to determine the main earnings of prime.
Against the decision made by the Court of First Instance on the acceptance of the case on the grounds set out in the judgment, upon the application for an appeal by the defendant Institution’s deputy, the 11th District Court of Justice. The Legal Department decided to reject the appeal application on the basis of the merits.
… District Court of Justice 11. After the decision made by the Legal Department was appealed by the defendant’s deputy, it became clear that the appeal request was in due course, and after the report prepared by the Examining Judge and the papers in the file were read, the need for the job was considered and the following decision was determined.
I-PROMPT
The plaintiff’s attorney of the defendant the plaintiff’s 20.11.2012 as a waitress in the workplace-continuous and continuously running 02.01.2014 between dates, premiums 1.272,73 TL net wage has been paid as worked for payroll signed under the pressure of losing their job, but a month to $ 2,000 TL 3,000 on the payroll of tips it receives between deposit insurance premiums should be reflected in asserting that missing 3.272,73 TL to be corrected, the services to be combined with other services is asked to decide.
II-ANSWER
The defendant’s deputy employer defended the rejection of the lawsuit by stating that the plaintiff works with a net wage of 1,272.73 TL, overtime, holiday and general holiday wages are paid, wages are paid from the bank to the amount that appears on the payrolls, and that the plaintiff is working with a net wage of 1,272.73 TL.
The deputy of the Defendant Institution has requested a dismissal of the case.
III-COURT DECISION
A-COURT DECISION OF THE FIRST INSTANCE
1-Acceptance of the case by the court and the plaintiff’s;
-November 2012 The amount of the SPEC is 447.39 TL,
-The amount of the December 2012 SPEC is 4,473.36 TL,
-The amount of the January 2013 SPEC is 4,874.52 TL,
-The amount of the February 2013 SPEC is 4,755.83 TL,
-The amount of the March 2013 SPEC is 4,755.83 TL,
-The amount of the April 2013 SPEC is 4,874.52 TL,
-May 2013 The amount of the SPEC is 4.993,22 TL,
-The amount of the June 2013 SPEC is 4,755.83 TL,
-July 2013 The amount of the SPEC is 4,856.62 TL,
-The amount of the August 2013 SPEC is 5,384.36 TL,
-The amount of the September 2013 SPEC is 4,879.61 TL,
-The amount of the October 2013 SPEC is 5,510.54 TL,
-The amount of the November 2013 SPEC is 4,879.61 TL,
-It has been decided that the December 2013 SPEC amount will be determined as TL 4,879.61.
B-THE DECISION OF THE DISTRICT COURT OF JUSTICE
The first decision to dismiss the case was made by the 11th District Court of Justice. The date of the Law Department is 15/12/2020 and is 2020/551-2020/1945 E.K. Ref No. “with a concrete case, the tips issued by the employer on the grounds that the determination is not a fee that is decided to refuse the request for earning prime, especially if according to the above principles, that is collected and distributed to employees by an employer in making the determination, the tip may be subject to judicial case law where the element evaluation as prime earning accepted. (Y.10.HD’s 2016/365-2637 E.K., 2015/15981-17779 E.K., 2016/3716-4231 E.K.). In the light of the material and legal explanations given above, the decision was taken without collecting evidence on the merits of the case and without evaluating it at all, on the grounds that it was contrary to the procedure and the merits,”the trial was continued by registering on the basis of 2019/7.
The Regional Justice Tribunal, the decision given against the defendant in the second case for the acceptance of the appeal of Regents of the institution of the appeal, “the tribunal of first instance made by trial and all of the file from the scope of Appeal is performed by considering the circumstances in the beginning of the file and witness statements confirming it within the scope of written proof in the face of the court case with the acceptance of the plaintiff’s profits mainly on the determination of insurance premiums, which is part of the court’s approach to” the merits is dismissed on the grounds.
IV-APPLICATION FOR THE PATH OF APPEAL LAW AND ITS CAUSES
The defendant’s SSI deputy requested that the decision be overturned on appeal, stating that the expert report was decided on the basis of the judgment before the court conducted a thorough investigation and examination, the evidence was collected sufficiently, and the expert report was not suitable for audit.
V-RULES OF RELEVANT LAW AND REVIEW
The legal basis of the case is Article 77 of Law No. 506. article 80 of the Law No. 5510. it is a substance. In these articles, it is regulated how to determine the basic earnings of the premium, and elements such as overtime pay, week holiday pay, national holiday and general holiday wages are also included in the concept of “wages” along with the actual wage. In order for the wages determined by the administrative or judicial authorities to be based on the premium account, it is not enough to qualify for such earnings, in a dispute between the parties regarding labor receivables, it is dec that the employee (insured) was paid after the court’s decision, in this case, the deduction of the premiums for wage-based earnings entitled to by a judicial decision from the payment to the insured at the time of execution of the insured share is also taken into account that the employer does not remove the obligation to pay a premium to the Organization, the month in which the payment was made should be included in the premium-based earnings base, and if the service contract expires at an earlier date, the payments made should be taken into account in the prime-based earnings of the last month in which the study was completed.
On the other hand, Article 288 of the Code of Civil Procedure No. 1086. in the article, the birth of a right, reduction, transfer, modification, renewal, postponement, confession and redemption that are made for the purpose of legal processes, the amount or value exceeds a pre-determined amount they’re made of the usual however, if the amount or value of transactions that must be proven by legal bonds, payment, debt recovery or (ibra) can be proven for any reason, such as a particular amount was reported to be bonded, even if it fell from, 289. in article 288. in accordance with article 292, the witness may be heard in case of the express consent of the counterparty by recalling the above provisions on matters that must be proved by deed. in the article, it is also stated that if there is a written start of evidence in matters that must be proved by deed, the witness can be heard, explaining that the start of evidence is not enough to completely prove the subject of the case, but there are papers and documents provided by the party that show that it exists and have been submitted against it. 200 of the Civil Procedure Code No. 6100, which entered into force on 01.10.2011. and 202. these regulations have also been preserved in their articles.
The calculation of the insurance premium to be paid to the institution real wages/earnings and service due to the public nature of the case must be based on the determination, the study proved with proof of any evidence of the phenomenon is subject to the freedom of wage, although about the same width, and charge a fee that exceeds the limits mentioned in the articles written proofs of claim written to has the obligation to prove. If the amount of the fee exceeds the limits specified in the article, the actual fee that must be determined; provided that they are issued with legal validity, it is possible to prove them with documents such as money receipts, bank records, trade book records, wage payrolls showing the monthly fee containing the signature of the insured person. A witness can be heard for the amount that falls below the limit of proof with written evidence, as well as a witness can be heard if there are documents that can be considered as the beginning of written evidence before and after the alleged study, even if the required amount exceeds the limit. Indeed, the General Assembly of the Supreme Court Law Day and 20.10.2010 2010/10-480 Main – 2010/10 day and 20.10.2010 2010/523 Decision-based on 481 – 2010/10 20.10.2010 day and 2010/524 Decision-482 Main – 19.10.2011 day and 2010/525 Decision 2011/10-608 Main – 2011/649 Decision 19.06.2013 day and 2012/10-1617 based on the same vision and approach adopted Decision No. 2013/850 in the sentence.
On the other hand, in terms of the period of Law No. 5510;
In Article 80/1-d of Law No. 5510; “The main earnings of the insured under subparagraph (a) of the first paragraph of Article 4 are determined as follows.
d) Fees are subject to a premium by costing the month they are entitled to. Other payments are included in the earnings paid first of the month and charge such payment is made outside of the upper limit which cannot be exceeded in the month the premium is subject to the portion of the payment is made, starting from the month following two months remaining below the upper limit not exceeding the prime essential is added to the income of the next month. Subject to collective bargaining agreements pursuant to the decisions of the judicial authorities or a public agency or isverenlerinc workplaces, post-paid fee of the service contract does not exist or is suspended, except for pay paid at a date in the case of the provision of Article 82, taking into account the earnings based on the most recent month’s prime is subject to the earnings are included. In these cases, if insurance premiums are paid by the end of the month following the date of finalization of the decisions of the above-mentioned authorities, no penalty for delay and an increase in delay will be received, and the provisions of Article 102 will not be applied. it has been said that “.
In light of the above legal regulations and explanations, the Steak House letterhead, which was accepted by the court and claimed to have been issued by the defendant employer, is written and signed by the General Coordinator … on the cachet of the defendant company “…to the Branch Office, … Ltd. Sti Argentina Cad. No. 18/A …/… who works as a waiter … receives a weekly tip of 500 TL (tip). We ask that the necessary be done..” if the undated document is issued by the defendant company, for what purpose and when it is issued, if it is issued, the defendant should be asked by the employer, it should also be taken into account that the document can always be edited, and a decision should be made on the basis of the result to be obtained from the collected evidence, examining whether it should be considered the beginning of written evidence.
The decision of the court in writing as a result of incomplete examination and erroneous assessment is contrary to the procedure and the law and is the reason for the violation.
In that case, the appeals of the deputy of the respondent Institution aimed at these aspects must be accepted, and … the District Court of Justice 11. By abolishing the decision of the Civil Chamber, the decision issued by the Court of First Instance must be overturned.
CONCLUSION: … District Court of Justice 11. 373/1 of the decision of the Legal Department of HMK. it was decided unanimously on 19.10.2021 that the decision of the court of first instance, which was abolished and appealed in accordance with the article, would be OVERTURNED for the reasons described above, and the file would be sent to the Court of First Instance, which made the decision.
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