Precedent decision on compensation and leave of absence of subcontracted workers recruited from the Supreme Court

Bursa Regional Court of Justice, the Board of Presidents of the Legal Departments, requested the Supreme Court to resolve the dispute due to the fact that there were different decisions on how to calculate the notice and severance pay and annual leave receivables in the termination of their contracts and retirements, due to the fact that the subcontracted workers received a waiver petition and were included in the permanent staff.

In the request, it is stated that the offices of the regional courts of justice in Ankara and Samsun accept the subcontracting period and calculate the compensation and leave receivables in the lawsuits filed on the subject. was done.

Examining the request, the 9th Civil Chamber of the Supreme Court unanimously decided that the period of subcontracting should also be taken into account in terms of the notice and severance pay to be paid to the worker and annual leave by public institutions and organizations.

JUSTIFICATION OF THE DECISION

In the decision of the Chamber, it was reminded that workers employed by contractors with a service procurement contract within the scope of temporary articles 23 and 24 added to Decree Law No.

With the aforementioned legal regulation, the decision stating that the subcontractor workers were transferred to permanent staff, said, “It is understood that the employment contracts were not terminated during this transition. In fact, it should be accepted that there is a transfer process based on the provision of law between the subcontractor and the main employer in terms of the workers who were transferred to the permanent staff staff in accordance with the Decree No. 375. ” evaluation was made.

“Since termination of the employment contract cannot be mentioned, it is not possible for the worker to be entitled to severance and notice pay due to termination and annual leave due to termination of the contract.” It was noted in the decision that the waiver petitions were not valid in terms of severance and notice pay and annual leave receivables, and that “an unborn right cannot be waived”.

For the reasons explained, it was pointed out that the rights of the subcontractor should also be calculated in calculating compensation and leave receivables, and the following statements were included in the decision:

“The evaluation of the work of the plaintiffs in the public institutions and organizations specified in Articles 23 and 24 of the Decree Law No. 375, together with their work after they have been transferred to the permanent staff, and determining the working period in terms of the rights related to the termination of the contract, taking into account the previous period’s working period. required.”