Service Determination Lawsuit and Acceptance of the Lawsuit by the Defendant

1. I. INTRODUCTION

The subject of this memorandum is the service determination lawsuit and the acceptance of the lawsuit by the defendant. In this context, the relevant legislation and the jurisprudence of the Court of Cassation will be discussed.

 

1. GENERAL INFORMATION ABOUT THE SERVICE DETERMINATION CASE
2. Law No. 5510 on Social Security and General Health Insurance (“Law No. 5510”) Article 9 paragraph 9 “If the insured whose monthly premium and service certificate or withholding and premium service declaration is not submitted by the employer or whose employment cannot be determined by the Institution can prove their employment by applying to the labor court within five years starting from the end of the year in which their services were rendered, their monthly earnings and the number of premium payment days specified in the court decision shall be taken into consideration.” It is possible for workers to file a service lawsuit based on the regulation.

 

2. There is no obligation to apply to the SSI in order to file a service determination case. As a matter of fact, the Labor Courts Law No. 7036 (“İMK”) Article 1, Paragraph 1 “In disputes arising from the Social Security and General Health Insurance Law dated 31/5/2006 and numbered 5510 and other social security legislation, it is mandatory to apply to the Social Security Institution before filing a lawsuit, except for the requests for determination of compulsory insurance periods due to work subject to a service contract. Without prejudice to the periods stipulated in other laws, if the Institution does not respond to the application within sixty days, the request shall be deemed rejected. In order to file a lawsuit against the Institution, the claims must be rejected or deemed rejected. The time to be spent in the application to the Institution shall not be taken into account in the calculation of the statute of limitations and forfeiture periods.” filing a service determination case is regulated as an exception to the application to the SSI

 

3. The court authorized to hear a service determination case is the labor court.

 

4. Pursuant to Article 6 of the ISA, the competent court for the determination of service is the court of the defendant's domicile or the place where the worker performs his/her work.

 

5. Pursuant to Article 86/9 of the Law No. 5510, the parties to the service determination case are the employee who claims that he/she is not insured and the employer who does not insure the employee.

 

6. However, pursuant to Article 4, Paragraph 2 of the ISE “In the lawsuits filed against the employer with the request for determination of the compulsory insurance periods due to their work subject to the service contract, the lawsuit is notified to the Institution ex officio. Upon notification, the Institution, which participates in the lawsuit as an accessory intervener alongside the defendant, may apply for legal remedy even if the party it participates in the lawsuit does not apply. The Institution is obliged to implement the judgment after it is finalized.” It is regulated that the service determination case will be notified to the SSI ex officio. According to this regulation, the SSI is an accessory intervener alongside the defendant in the lawsuit.

 

 

7. Pursuant to Article 4/1 of the ISA, there is a 5-year prescription period for the filing of a service determination case, starting from the last year of service.

 

8. Limitation periods are taken into consideration by the Court ex officio as a condition for filing a lawsuit and Article 142 of the Code of Civil Procedure No. 6100 “After the preliminary examination hearing is completed, the judge shall examine and decide on the objections and defenses regarding the limitation periods and the statute of limitations before commencing the proceedings.” It shall be evaluated after the preliminary examination hearing.

 

9. As it is known, as a rule, if a lawsuit is filed after the statute of limitations has expired, the court shall dismiss the lawsuit for lack of a cause of action. However, in some cases, if the defendant accepts the lawsuit, it may be decided to accept the lawsuit even though it was filed after the statute of limitations has expired. As a matter of fact, within the scope of the decision of the 1st Civil Chamber of the Court of Cassation dated 20.10.2022 and numbered 2022/4534 E. 2022/6910 K. “In the concrete case, it is understood that the lawsuit was filed after the expiration of the statute of limitations, but the defendant declared that he accepted the lawsuit with the petition submitted to the Court before the preliminary examination hearing; the lawsuit is not related to public order in terms of its nature and does not contain a request to affect the rights of persons who are not parties to the lawsuit. It should be noted immediately that, even though the limitation period is a condition of the lawsuit, when the above-mentioned facts are evaluated together with the regulations explained in subparagraph 3.2, it is undoubted that the defendant's statement of acceptance, which gives rise to the consequences of the final judgment, should be valued first. As such, it is not correct to dismiss the case on the grounds of the limitation period instead of making a decision within the framework of the statement of acceptance.” A decision has been rendered in this manner. Similarly, within the scope of the decision of the Supreme Court 1st Civil Chamber dated 27.09.2018, numbered 2015/15852 E. 2018/12928 K. “Even if the lawsuit is filed after the expiration of the statute of limitations, if the defendant accepts the lawsuit, the court cannot automatically consider the statute of limitations and dismiss the case on this ground. Furthermore, since the present case, by its nature, does not concern public order and does not include a request that would affect the rights of non-litigant parties, it is undoubtedly necessary to give weight to the defendant's statement of acceptance in light of the above-mentioned provisions. In this context, dismissing the case instead of accepting it is not appropriate. Such a ruling has been established. As can be seen, when the defendant has made a statement of acceptance, it is unlawful for the court to dismiss the case by independently evaluating the statute of limitations. In this situation, the defendant's statement of acceptance should be given importance, and the case should be decided in favor of acceptance.

 

10. On the other hand, since the Social Security Institution (SSI), as an additional intervening party, is also involved alongside the principal defendants in the service determination case, the situation of the SSI must also be taken into consideration. It should first be noted that Article 68/1 of the Turkish Code of Civil Procedure (HMK) states that... "In the event that the request for intervention is accepted, the intervenor may only continue the case from the point it has reached. The intervenor may assert claims or defenses that are in favor of the party they have joined and may perform any procedural actions that are not contrary to the actions and statements of that party." "With the provision stating that the auxiliary intervenor cannot perform actions contrary to the actions and statements of the party they have joined, it is explicitly clarified."

 

11. In this context, if the principal defendant accepts the case and the court decides to accept the case, it would constitute a violation of the law for the auxiliary intervenor to seek a legal remedy. Indeed, within the scope of the decision of the 8th Civil Chamber of the Court of Cassation dated 18.06.2020 and numbered 2017/9415 E. 2020/3668 K., As a rule, the claims and procedural actions of the auxiliary intervenor during the trial stages cannot be contrary to or inconsistent with the claims and procedural actions of the party with whom they have filed the intervention request. Otherwise, such claims or procedural actions are invalid. In the present case, considering that the auxiliary intervenor ... had filed the intervention request alongside the defendants ..., and the attorney of these defendants stated at the decision hearing that they accepted the case and subsequently did not file an appeal, the auxiliary intervenor's appeal against the court's decision to accept the case is contrary to the acceptance statement of the defendant with whom the intervention request was filed. Therefore, it cannot be considered as a valid appeal. A judgment has been rendered in this manner. Similarly, in the decision of the 1st Civil Chamber of the Court of Cassation dated 20.06.2019, numbered 2019/1458 E. and 2019/4019 K., The intervenor, the Treasury's attorney, requested a correction of the decision with a petition dated 11.02.2019. As is well known, in third-party intervention, a third person with a legal interest in the ongoing case may only join as an assistant on the side of one of the parties. Therefore, third-party intervention is a legal route for a third party whose legal status will be indirectly affected if the case results against the defendants, and the usual aim is to ensure that the case results in favor of the defendant (i.e., dismissal). On the other hand, the court decides on the acceptance or rejection of the intervention request based on the intervention petition. If the intervention request is accepted, the intervenor follows the case only from the point they joined, acting with the party they intervened in favor of. The judgment is rendered regarding the party in whose favor the intervention was made. The intervenor may only appeal the judgment along with the party they intervened in favor of. Furthermore, in the correction of the decision, just like in the appeal process, if the party in whose favor the intervention was made does not appeal the decision, the provisions of the Civil Procedure Code No. 6100 apply. 68According to Article [X] of the Civil Procedure Code, an intervenor, who is required to act together with the party they intervened in favor of, cannot request a correction of the decision on their own. 68Since the intervenor is not directly involved in the dispute and no decision has been made against the intervenor, they do not have the right to request a correction of the decision on their own. In light of the explanation above, and considering the provision in Article [X] of the Civil Procedure Code that the intervenor must act with the party they joined, in the present case, the intervenor, who joined the defendant's side, does not have the right to request a correction of the decision independently, as the defendant has not made such a request. the provision has been established as follows.

 

12. It should be noted that Article 69/1 of the Civil Procedure Code (HMK) states: The judgment in the main case, in which the intervenor is also involved, is rendered regarding the parties. According to the ruling, the judgment in the case is not for the intervenor. Therefore, if the party to whom the intervenor has joined in the case is found to be unjust, the intervenor is only held responsible for the costs arising from the intervention. However, if the party the intervenor joined is found to be just, the litigation costs, including the intervention costs, are imposed on the opposing party. If the party to whom the intervenor joined caused the intervention with its negative conduct and actions, that party is held responsible for the costs related to the intervention. It is accepted that the concept of intervention costs is narrower in scope than litigation costs, and therefore, costs beyond the fees and other expenses required for the process to be carried out, as well as attorney's fees, cannot be imposed on the party responsible for the intervention costs. ndeed, according to the decision of the 23rd Civil Chamber of the Court of Cassation dated 21.02.2019, with case number 2017/1978 E. 2019/654 K., 'the intervenor may present claims and defenses in favor of the party to whom they joined.68According to Article 69/1 of the Civil Procedure Law (HMK), the judgment in the main case, in which the intervenor is also involved, is issued regarding the parties. In other words, a judgment cannot be issued in favor of or against the intervenor in the case. As a result, even if the intervenor is represented by an attorney, no attorney's fee can be awarded in favor of the intervenor..” the provision has been established as follows.

 

• CONCLUSION

In conclusion, within the framework of all the points discussed above;

• A service determination lawsuit is a case filed against an employer by an employee working without insurance, in order to determine the periods during which the employee worked without insurance.
• There is no requirement to apply to the Social Security Institution (SGK) in order to file this lawsuit.
• The labor court where the employee's work is located or where the employer is based handles the service determination case.
• There is a 5-year statute of limitations for filing a service determination case, and the court will consider this statute of limitations ex officio.
• The service determination case is automatically reported to the Social Security Institution (SGK), and SGK joins the case as an intervening party alongside the main defendant.
• Even if the statute of limitations has expired, if the service determination case filed is accepted by the defendant, the court should prioritize the defendant's statement and decide to accept the case without considering the statute of limitations.
• If the court decides to accept the case based on the defendant's acceptance statement, it would be unlawful for the intervenor to act contrary to the defendant's actions and statements and to appeal the acceptance decision.
• In accordance with the court's decision, no attorney's fee is awarded in favor of or against the intervenor.