WHAT IS A SERVICE DETERMINATION LAWSUIT?
The service determination lawsuit is a determination lawsuit filed by the employee against the employer and the Social Security Institution in the labor courts called “service determination”, which are the periods for which premiums are 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 lawsuit petition and determined by the court as a result of the proof.
WHAT ARE THE CONDITIONS FOR A SERVICE DETERMINATION LAWSUIT?
In order for a service determination lawsuit to be filed, it must be proven that the plaintiff worker worked under an employment contract that establishes his/her insurability. There must be a service contract between the worker and the employer, the worker must have fulfilled the obligation to perform work within the scope of the service relationship, and the SSI must not have previously determined that the worker was employed without insurance or that the insurance premiums were underpaid.
For the acceptance of the service determination lawsuits, there must be a workplace where the plaintiff is actively working 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 in which the service was performed.
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, 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?
Pursuant to the Labor Law, labor courts are in charge of service determination cases. As a general rule, the competent court will be the court of the defendant’s place of residence. Apart from this, the place where the worker’s workplace is located is also authorized 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 service determination lawsuit will be filed by submitting the petition, which includes the claims and means of proof regarding the determination of service, to the competent labor court.
Is mediation mandatory in employment determination cases?
Pursuant to the Labor 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 A 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 labor court within 5 years starting from the end of the year in which the service was rendered. The period specified in the law is the prescriptive period and the lawsuits filed after the expiration of this period will not be heard. However, there are some exceptional cases where the service determination lawsuit is not subject to the prescription period.
The first exception is if 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. In the event that 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 when 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 due diligence report or investigation reports,
If the insured’s premiums were collected from the employer by the Institution through execution as a result of the minimum labor 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 notification is given to the Institution in due time, but the payroll and premium are not transferred to the SSI,
There are judicial decisions that are final judgments for the same period regarding labor rights.
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 the employment declaration, period payroll, etc. regarding the insured are submitted to the Institution or the works are determined by the Institution; it cannot be mentioned that the period of forfeiture has elapsed in terms of the works learned 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 Supreme Court stages are not considered within this period. Considering the practical applications;
Petitions must be full and complete
Notification periods
Processes such as hearing witnesses, if any, vary according to the content of the case.
According to general averages, it can be said that cases in labor courts are concluded between 12 and 18 months. When the stages of Appeal and Court of Cassation that start after the first instance court decision are taken into account, it is possible for a case to extend up to 3-4 years.