SERVICE DETERMINATION CASE

1-The Service Detection Case is the type of lawsuit to be filed against the employer by the workers who are reported to the social security institution with insufficient terms of service, who are entered and exited despite their continuous employment, whose SSI entries are made late, or who are employed without insurance.

In the 9th paragraph of the Social Insurance and General Health Insurance Law No. 2-5510 and Article 86, “In one or more jobs, the insured person has to fulfill the conditions written in this Law, but the monthly premium and service document or the concise and premium service document that must be given to him/her. If it is determined by the Institution that the employer's declaration is not given by the employer or the monthly premium and service document or the concise and premium service declaration, the earnings or the number of premium payment days are found to be insufficient, the necessary payments are made from the sickness and maternity insurances. Accordingly, a worker who is employed without insurance or whose insurance premiums are underpaid can file a service lawsuit.

REQUIRED CONDITIONS FOR OPENING A SERVICE DETECTION CASE

There must be a service contract between the worker and the employer.

-The worker must fulfill his obligation to work within the scope of the service relationship.

-The situation that the worker is employed without insurance or the insurance premiums are underpaid must not have been previously determined by the SSI.

THE PARTIES TO THE CASE IN SERVICE DETECTION

1-Plaintiff is the person who has the title of worker within the scope of Article 4/a(1) of the Social Insurance and General Health Insurance Law No. 5510. If the worker has passed away, his heirs have the right to file the service determination case within the period of deprivation.

While it is obligatory to show the Social Security Institution as the defendant in the service determination lawsuits to be filed before 2-11.09.2014, Article 7 of the Labor Courts Law No. 5521 was amended with the 64th Article of the Law No. 6552 and as of 11.09.2014. It has been regulated that the Institution will not be shown as the defendant in the service determination lawsuits to be filed, and the case will be reported to the Institution ex officio.

3-However, the Labor Courts Law No. 5521 was repealed by the Law No. 7036 on Labor Courts. In the 4th article of the Law on Labor Courts No. 7036, “In cases brought against the employer with the request for the determination of the periods of compulsory insurance due to their work subject to a service contract, the case is reported to the Institution ex officio. Upon notification, the Institution, which participates in the case as an auxiliary intervening alongside the defendant, may apply to legal action even if the party with which it participates does not apply. The institution is obliged to implement the decision to be made as a result of the trial after it becomes final. “ has been said.

4-As a result, only the employer will be shown as the defendant in the service determination lawsuits to be opened with the amendment made in the Law, and the case will be reported ex officio to the Social Security Institution. The institution will participate in the case as a secondary intervener upon notification. In addition, if there is a subcontractor relationship, if the subcontractor is unable to pay his debt to the worker due to his bad economic situation, the main employer will be responsible for the said debt.

LIMITATION TIME IN THE SERVICE DETERMINATION ACTION

The period for filing a service determination lawsuit for "services that are never notified" to the insurance by the employer is 5 years from the last day of the year the employee left the job. The period in question is a period of disqualification and will be taken into account by the judge ex officio. However, there are exceptions to the rule that it is subject to a 5-year period of disqualification.

OFFICIAL COURT IN THE CASE OF DETERMINATION OF SERVICE

In accordance with Article 5 of the Labor Courts Law No. 7036, the court in charge of the cases to be filed for the determination of service is the Labor Courts.

AUTHORIZED COURT IN THE CASE OF DETERMINATION OF SERVICE

Pursuant to Article 6 of the Labor Courts Law No. 7036, the competent court is the court of the place of residence of the defendant real or legal person at the time the lawsuit was filed and the court of the place where the work or transaction was carried out. The competent court in the cases brought against the Social Security Institution is the court of the place where the Institution is located. If there is more than one defendant in the service determination case, it is sufficient to file a lawsuit at the residence address of one of the defendants.