T.C
JUDGMENT
22ND CIVIL COURT
ESAS NO.2017/7296
DECISION NO.2017/1656
DECISION DATE.07.02.2017
COURT :Labour Court
SUMMARY: In the procedural dismissal of the labour receivable case with a case value of 50 TL due to “pendency” pursuant to Article 114/1-I, Article 115/2 of the CCP, the attorney’s fee… the attorney’s fee awarded cannot exceed the amount accepted or rejected … an attorney’s fee of 50.00 TL should be awarded in favour of the defendant, who represented himself by proxy in the proceedings, in terms of the rejected part
The appeal of the decision given as a result of the lawsuit between the parties was requested by the defendant’s attorney, and it was understood that the appeal request was in due time. After listening to the report prepared by the Examining Judge … for the case file, the file was examined and the necessity was discussed and considered:
DECISION
The plaintiff’s attorney summarised in his petition; his client worked at the defendant’s workplace between 04.12.2007-10.04.2014 for 1. 200,00 TL wage, that the defendant’s workplace has recently adopted a policy of intimidation against a certain group of employees and that many workers have been made to quit their jobs in this way, that his client’s working conditions were changed, that his client was tried to get a written document to change his working conditions, that he was mobbed, that he was also mobbed by other workers and that he was subjected to moral violence, that his client rightfully terminated his employment contract, … 19. Labour Court’s case file numbered 2014/713, the lawsuit was rejected on procedural grounds, and thereupon, he filed the aforementioned lawsuit and sued and claimed some labour receivables.
Defendant … 19. The defendant claimed that the lawsuit filed in the case file numbered 2014/713 of the Labour Court was rejected due to the lack of legal interest, that the plaintiff worked as a welder, this issue is fixed with the contract made, that the plaintiff was temporarily assigned as a quality assurance manager, then he was assigned to the welding duty, which is his main job, that the plaintiff’s claim that the defendant was transferred to another work area that is heavier than his profession and status in the first workplace where he was assigned and where the second assignment was made is not appropriate, and that there was no change in the working conditions of the plaintiff and requested the dismissal of the lawsuit. In addition, the plaintiff filed a pendency objection at the preliminary examination hearing.
The court decided to procedurally dismiss the lawsuit pursuant to Article 115/2 of the same Law in accordance with Article 114/1-I of the Code of Civil Procedure No. 6100.
The decision was appealed by the defendant’s attorney.
RATIONALE:
According to the first paragraph of Article 13 of the Attorneys’ Minimum Fee Tariff in force on the date of the decision; “If the subject matter of the legal assistance shown in the second part of the second part of the second part of the Tariff can be evaluated with money or money, the attorney’s fee shall be determined according to the third part of the Tariff, provided that it is not below the fixed fees specified in the second part of the Tariff for the court where the case is heard (without prejudice to the provisions of the second paragraph of Article 7, the last sentence of the first paragraph of Article 9 and the last paragraph of Article 10). According to the second paragraph of the same article; “However, the fee awarded cannot exceed the amount accepted or rejected”.
In the concrete case, the court decided to dismiss the lawsuit. Accordingly, the lawsuit was dismissed for 50,00 TL in terms of the amount filed. In this case, in favour of the defendant, who was represented by an attorney in the proceedings, an attorney fee of 50,00 TL should be awarded in terms of the rejected part, although it is erroneous to establish a written judgment, since this issue does not require a retrial, it is necessary to decide to approve the judgment by correcting it as follows in accordance with Article 438/7 of the abrogated Code of Civil Procedure No. 1086, which is still in force in accordance with the provisional Article 3 of the Law No. 6100.
CONCLUSION: It was decided unanimously on 07.02.2017 by deleting the 3rd paragraph of the judgment of the appealed decision and adding the numbers and words “Since the defendant represented himself by an attorney, the attorney fee of 50,00 TL in accordance with the Attorney Minimum Fee Tariff in force on the date of the decision shall be collected from the plaintiff and given to the defendant”, and the judgment shall be affirmed as amended in this way, and the prepaid appeal fee shall be returned to the relevant person upon request.
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