Service Detection Case

Social security, which is a constitutional right, guarantees employees' future retirement rights, their ability to benefit from health services, and their security against risks such as work accidents. However, in our country and especially in Istanbul, where commercial circulation is highest; Situations such as workers being employed without insurance, late notification of employment dates, or underpayment of SSI premiums based on the minimum wage rather than the actual salary are frequently encountered.

A lawsuit filed by a worker whose insurance records are not made at all or whose insurance records are incomplete, in order to legally register his past actual work. Service Detection Case It is called. This case is not only a way of seeking rights, but also a vital turning point, from gaining retirement rights within the scope of EYT (People who are stuck in retirement age) to increasing the amount of future pension.

In this guide; We detail the legal conditions of the service determination case, the limitation periods, the most up-to-date proof criteria of the Supreme Court, and the ways you should follow to avoid loss of rights.

1. What is a Service Determination Case and What are the Conditions?

A service determination case is a determination case filed by workers whose work has not been reported to the Social Security Institution (SGK) or has been reported incompletely, although they work in jobs that are considered insured within the scope of the Social Security and General Health Insurance Law No. 5510.

In order for a service determination case to be accepted by the court, the following three basic conditions must be present:

• Existence of Service Contract (Employment Relationship): There must be a written or oral employment contract between the employee and the employer, based on a relationship of dependence, a certain wage and the performance of work. Those who work independently on their own behalf cannot file this lawsuit.
• Actual Working Fact: The employee must have worked actually and continuously at the employer's workplace between the dates he claims.
• The Study is Not Registered by the Institution: This work must not have been reported to SSI at all, or even if it was reported, it must have been shown incompletely on a day/wage basis.

Evidence and Proof Tools That Can Be Used in Service Detection Cases

The most important issue in the service determination case is that the worker can prove that he actually works in that workplace. The court does not decide solely based on the worker's statement; It evaluates the documents showing the employment fact, witnesses, SSI records, workplace records and precedent evidence together.

Witness selection is extremely important in service determination cases. Especially co-workers who were on payroll during the same period, employees of neighboring workplaces, or people who directly saw the worker actually working are strong witnesses. Witnesses who are close relatives or give abstract explanations may often not be sufficient on their own.

For this reason, before filing a lawsuit, the worker must regularly collect all documents related to the working period. SGK service statement, bank records, messaging, workplace photographs, workplace ID card, if any, service or meal card information, e-mail correspondence and witness list should be prepared together.

2. The Biggest Mistake of Competitors: Is Mediation Mandatory in Service Determination?

The biggest mistake made on law blogs and rival websites is to argue that the "compulsory mediation" requirement, which is valid in receivables cases in labor law, is also valid in service determination cases.

Legal Fact: Applying to mediation in service determination cases not mandatory. The right to social security is related to public order and is an area on which the parties cannot freely dispose, waive or compromise. For this reason, the employee can file a service determination case directly in the competent Labor Court without going to a mediator.

Against whom can a service determination lawsuit be filed?

As a rule, a service determination lawsuit is filed against the employer who employs the employee without insurance or under insurance. The employer can be a real person, a limited company, a joint stock company, a sole proprietorship, an association, a foundation or another legal entity. For this reason, before filing a lawsuit, the employer for which the employee works, the trade name of the workplace, SSI workplace registry information and actual working address must be determined accurately.

In practice, workers may sometimes be employed at the same address through different companies, the workplace may be transferred, or the company appearing on the payroll may be different from the company actually giving orders and instructions. In such cases, determining the real employer is of great importance. The worker must reveal who he actually works for, who pays his wages, who he receives instructions from, and which employer the work organization belongs to.

In service determination cases, the Social Security Institution is not directly shown as the main defendant. The lawsuit is mainly filed against the employer; However, the court notifies the case to SGK and SGK participates in the trial as an accessory participant. Because the decision to be made at the end of the case directly affects the worker's insurance records and the Institution's records.

For this reason, the employer must be stated correctly in the petition, and the working dates and workplace information must be written clearly. Lawsuits filed against the wrong employer or with the missing party may lead to prolongation of the process, procedural problems and loss of rights.

3. Limiting Time and Critical Exceptions in Service Detection Cases

The general period determined by law for filing a service determination lawsuit, 5 years starting from the end of the year of service. This period is not a statute of limitations, but a limitation period; In other words, it is taken into consideration by the court ex officio and if the deadline is missed, the right to sue is completely eliminated.

However, the Supreme Court ruled that it is very important to eliminate the 5-year limitation period in order to prevent the worker from being victimized. exceptions has determined:

• Submission of Employment Declaration: If the employer has submitted the employee's employment declaration to the SSI, but has not subsequently deposited the period payrolls and premiums, the Institution is deemed to be aware of the employment and 5-year blackout period does not apply. In this case, the worker can file a lawsuit even years later.
• Block (Continuous) Working Status: If the worker has worked in the same workplace uninterruptedly, but only the last period of this employment is shown as insured, the deprivation of rights for previous periods without insurance starts from the end of the year in which the employee was dismissed (the contract was terminated).
• Official Audits and Reports: If the existence of the work is determined by official reports prepared by SSI inspectors or auditors or court records, the period of limitation does not apply.

4. Comparison of Labor Cases and Service Determination Cases

What Happens If the Service Determination Case is Won?

When the service determination case is won, the court determines that the worker worked as an insured in the relevant workplace between certain dates. After the decision is finalized, these working periods are recorded in the SSI records and the number of premium days of the worker is corrected retroactively. Thus, a significant gain is achieved in terms of the worker's retirement account, insurance start and social security rights.

Winning the case is of great importance, especially in cases where the insurance start date must be pushed back. If the SSI entry is made late even though the worker has actually started working earlier, the start of insurance may be corrected according to the actual working date by court decision. This situation may have a direct impact on EYT, old-age pension, retirement conditions and number of premium days.

As a result of the service determination lawsuit, the employee is not directly paid severance pay, notice pay or overtime pay. This case is not a money receivable case, but a case to determine the insured working period. However, the earned service determination decision constitutes a very strong basis for proving the working time in labor claims lawsuits that will be filed later.

After the court decision is finalized, premiums, delay penalties and administrative fines for the determined periods are requested from the employer by SSI. The worker does not pay retroactive premium debts out of his own pocket. In this respect, the service determination case is an important type of case that protects not only the worker's past working period but also his future retirement and social security rights.

5. Frequently Asked Questions (FAQ)

Question 1: Is it mandatory to apply to a mediator in a service determination case?

Reply: No. Since the service determination case is related to public order and social security rights cannot be waived, it is not within the scope of compulsory mediation. A lawsuit can be filed directly in the Labor Court.

Question 2: When does the 5-year period for filing a lawsuit begin?

Reply: If the employer has not made any notification to SSI, the 5-year blackout period begins to run from the last day (December 31) of the year in which the employee quits his job (service ends).

Question 3: Where should a service determination lawsuit be filed for a workplace in Şişli, Mecidiyeköy or Beşiktaş?

Reply: The competent judicial authority in the cases of workers working in workplaces located in Şişli, Mecidiyeköy, Beşiktaş, Kağıthane, Fatih or Sarıyer districts on the European Side of Istanbul Istanbul (Çağlayan) Labor Courtsis.

Question 4: In which courthouse should a worker working in Kadıköy, Ataşehir or Ümraniye file his case?

Reply: The competent judicial body for workers working on the Anatolian Side of Istanbul, within the borders of Kadıköy, Ataşehir, Ümraniye, Maltepe, Kartal, Pendik or Tuzla Istanbul Anatolia (Kartal) Labor Courtsis.

Question 5: Which courthouse is authorized for workplaces in Bakırköy, Esenyurt or Beylikdüzü?

Reply: Competent court for employees working in workplaces operating in Beylikdüzü, Esenyurt, Avcılar, Bahçelievler or Küçükçekmece regions Bakırköy Labor Courtsis.

Question 6: Can the right to EYT be gained with a 1-day insurance determination case?

Reply: Yes. In particular, workers who actually started working before September 8, 1999, but whose insurance entry was not made or whose insurance entry was made late, can withdraw their insurance commencement by filing a "1-day insurance commencement determination case" and gain the right to retire within the scope of EYT.

Question 7: What should be done if insurance premiums are paid at the minimum wage and the real salary is paid in person?

Reply: In this case, the worker can file a lawsuit to determine his real wage (real premium base). Real salary; It is evidenced by bank records, precedent wage research, internal workplace correspondence and witness statements.

Question 8: Can the heirs of a deceased worker file a service determination lawsuit?

Reply: Yes. In case of death of the worker, his legal heirs have the right to file a retroactive service determination lawsuit by applying to the Peace/Labor Courts within the limitation period.

Question 9: What evidence can be used in a service determination case?

Reply: Workplace entry-exit card records, turnstile records, bank receipts for salary payments, clothes with workplace logos, WhatsApp correspondence, e-mails and most importantly, the testimonies of payroll colleagues and neighboring workplace employees are the strongest evidence.

Question 10: Is SGK the defendant in this case?

Reply: After the legal change in 2014, the lawsuit is filed directly against the employer; However, the court notifies the case to SSI ex officio. SGK follows the process by being present in the court where the case is being conducted as a "subsidiary intervener".

Question 11: Can those who are employed without insurance after retirement file a lawsuit?

Reply: Yes. It is a legal obligation for retired employees to be employed by paying Social Security Support Premium (SGDP). Retired people who are employed without insurance can also file a retroactive service determination lawsuit.

Question 12: If the service determination case is won, will compensation be paid to the worker?

Reply: No. A service determination case is not a direct compensation case; Its purpose is to register the right to social security. However, the bonus days finalized after the case is won constitute conclusive evidence to prove the working time in severance and notice pay cases to be filed in the future.

Question 13: Can a worker who voluntarily resigns from work file this lawsuit?

Reply: Yes. The way the employee leaves the job (resignation, justified termination or unfair termination) has no effect on the right to file a service determination lawsuit. Any worker employed without insurance can file a lawsuit, regardless of the reason for leaving.

Question 14: Can those working in home services (cleaning, child/elderly care) request service determination?

Reply: Yes. Those who work in domestic services for 10 days or more per month must be legally insured. Those who are employed in this way and are not insured can claim their rights by filing a service determination lawsuit.

Question 15: Who pays the accumulated premium debts and administrative fines if the case is won?

Reply: Once the court decision becomes final, insurance premiums, delay penalties and administrative fines for the determined period will be paid directly by SSI. from employer is collected. No wage comes out of the worker's pocket.

Why Should You Contact Us?

Service determination cases are one of the most technical and meticulously managed areas of labor law. The nature of the witnesses to be presented during the case process (especially whether they are payroll employees or witnesses of a neighboring workplace), examination of workplace books, requesting precedent wage research through the right institutions, and correctly presenting the disqualifying period exceptions to the court directly determine the outcome of the case.

We are with you to ensure that you are not left alone in the face of employers' professional human resources experts and lawyer staff, and that you do not suffer from procedural errors or missed time in your justified case.

As Attorney Mehmet Emin Kurşun Law Firm;

The right to social security is the most basic legal protection of employees' future retirement lives and financial security. Situations such as being employed without insurance even though you have worked for years, reporting your employment dates late, or paying your actual salary in person and showing your premiums less than the minimum wage, lead to irreparable loss of rights. Attorney Mehmet Emin Kurşun Law Firm; It offers professional, transparent and result-oriented legal consultancy and litigation services with its expert staff based in Istanbul, at all stages from millimetric analysis of the limitation periods in line with the Supreme Court jurisprudence to the management of evidence and witness processes in Çağlayan, Kartal and Bakırköy Labor Courts, in order for employees to retroactively earn the bonus days they deserve and to complete the EYT processes.