WHAT IS A SERVICE DETERMINATION CASE?
The service determination lawsuit is a determination lawsuit filed by the employee against the employer and the Social Security Institution in the labour courts called “service determination”, which are the periods for which the premium is not paid. These premiums will be collected from the employer by determining the premium according to the service period and wage amount claimed in the petition and determined by the court as a result of the proof.
WHAT ARE THE CONDITIONS OF THE SERVICE DETERMINATION LAWSUIT?
In order for the service determination lawsuit to be filed, it must be proved that the plaintiff worker works under an employment contract that reveals the insurability of the worker. There must be a service contract between the employee and the employer, the employee must have fulfilled his/her obligation to perform work within the scope of the service relationship, and it must not have been previously determined by the SSI that the employee was employed without insurance or that the insurance premiums were underpaid.
For the acceptance of service determination lawsuits, there must be a workplace where the plaintiff works actively based on the service contract that reveals the insurability of the plaintiff, which is within the scope or possible to be included in the scope of the alleged work, the employer; monthly insurance declarations and quarterly payrolls must not be submitted or the insured’s employment must not be determined by the institution for some reason, and most importantly, the lawsuit must be filed within the 5-year prescriptive period starting from the end of the year of service.
The persons working with the plaintiff and payroll witnesses are heard ex officio as witnesses, the scope, capacity and nature of the workplace and these statements are checked, how the witnesses have the information they give while evaluating their words, their relationship with the employer, employee and workplace are investigated and a decision is reached by the court.
HOW TO FILE A SERVICE DETERMINATION LAWSUIT?
Labour courts are in charge of service determination cases in accordance with the Labour Law. The competent court will be the court of the defendant’s place of residence in accordance with the general rule. Apart from this, the place where the worker’s workplace is located is also authorised for this case. While the plaintiff is the employee whose insurance premiums have never been paid, the defendant is the employer and the Social Security Institution, which did not make insurance premium payments and notifications. A lawsuit for determination of service shall be filed by submitting the petition, which includes the claims and means of proof regarding the determination of service, to the competent labour court.
IS IT MANDATORY TO APPLY FOR MEDIATION IN DETERMINATION OF SERVICE CASES?
Pursuant to the Labour Law, some cases are included in the scope of mandatory mediation. For these cases, it is not possible to file a lawsuit without applying for mediation. The service determination case is not included in the scope of mandatory mediation due to its nature. Therefore, there is no obligation to apply to mediation before filing a lawsuit.
WHAT ARE THE RESULTS OF THE SERVICE DETERMINATION LAWSUIT?
As a result of the service determination lawsuit, after examining the evidence submitted by the parties and the evidence brought ex officio, the court will decide on the collection of the underreported insurance premiums from the employer and the completion of the missing insurance days.
IS THERE A STATUTE OF LIMITATIONS OR FORFEITURE PERIOD IN THE SERVICE DETERMINATION CASE?
The worker or his/her beneficiaries in case of his/her death must file the service determination lawsuit by applying to the labour court within 5 years starting from the end of the year in which the service was rendered. The period shown in the law is the prescriptive period and the lawsuits filed after the expiry of this period are not heard. However, there are some exceptional cases where the service determination lawsuit is not subject to the forfeiture period.
The first exception is the case where any of the documents listed in the Regulation on Social Insurance Transactions that must be submitted to the Institution have been submitted to the Institution. If one of these documents is submitted to the Institution, the period of limitation will not start. The documents accepted within this scope are as follows:
Employment declaration (Article 27 of the Regulation),
Four-month insurance premiums payroll (Article 17 of the Regulation),
Monthly insurance premiums declaration (Article 17 of the Regulation),
Insured account receipt (Article 18 of the Regulation).
The other exception is the case where the institution determines that the worker works for the employer subject to an employment contract. These cases are
If the work is determined by the inspector’s status determination report or investigation reports,
If the premiums of the insured are collected from the employer by the Institution through execution as a result of the minimum labour inspection,
If the employer has not deposited the insurance premium to the Institution even though it clearly shows that it deducts insurance premium from the insured in the signed wage payment payroll,
If he/she becomes a civil servant while he/she is insured, the employment declaration is given to the Institution in due time, but the payroll and premium are not transferred to the SSI,
There are judicial decisions regarding labour rights for the same period, which are final judgements.
In such cases, the 5-year period of abatement shall not be applicable in the service determination case.
In summary, in the event that the documents specified in the regulation such as employment declaration, period payroll are submitted to the Institution or the work is determined by the Institution; It cannot be mentioned that the period of forfeiture has elapsed in terms of the work learnt by the Institution and continued uninterruptedly afterwards.
HOW LONG DO SERVICE DETERMINATION CASES LAST?
The Ministry of Justice aims to conclude the ongoing lawsuits between the employee and the employer within a maximum of 540 days. Appeal and Court of Cassation stages are not considered within this period. Considering the practical applications;
Petitions must be full and complete
Notification periods
Processes such as listening to witnesses, if any, vary according to the content of the case.
Looking at the general averages, it can be said that the cases seen in the labour courts are concluded between 12 and 18 months. When the stages of Appeal and Court of Cassation, which start after the first instance court decision, are taken into account, it is possible for a case to extend up to 3-4 years.
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