Action for Determination of Employment and SGK Disputes

What we do in this area

The firm brings and conducts actions for determination of employment (hizmet tespiti) on behalf of employees to establish periods of employment that went unregistered or were declared with missing days or a lower wage; it pursues actions before the labour court against Social Security Institution (SGK) decisions concerning the rejection of retirement applications, cancellation of insured status and the calculation of old-age pensions. On the employer side, it conducts objection and litigation processes against SGK inspection reports, premium debt assessments and administrative fines. The majority of files are heard before the labour courts in İzmir.

This page is a sub-topic of the employment law tree. For severance and wage claims relating to the period established, see severance pay, notice pay and overtime claims; for accidents suffered while working unregistered, see the occupational accident and occupational disease page. The administrative court stage of administrative fines is handled under administrative law.

Common file types

How the action for determination of employment works

The action is brought against the employer of the workplace where the employment took place; if the employer has died, the heirs are named as defendants, and if the company has been deregistered after liquidation, restoration of its legal personality and proper representation may first be necessary. The liquidator does not automatically replace the company as defendant. The Institution joins the action as an accessory intervener and may take the judgment to appeal. The action concerns public order: the judge is not bound by the evidence brought by the parties and requests of the court's own motion the workplace file, the payroll records for the period, a law enforcement inquiry and the records of neighbouring workplaces.

Witnesses are at the centre of proof, but not every witness carries the same weight. In the practice of the Court of Cassation (Yargıtay), the statements of witnesses shown by payroll to have worked at the same workplace in the same period, and of witnesses who are the owners or employees of neighbouring workplaces, are relied upon; a file built only on relatives or witnesses from outside the workplace remains weak. Payslips, work correspondence, bank account movements, workplace health records and photographs support the witness testimony. When the judgment becomes final, the premiums for the period established are collected from the employer together with late payment surcharges; no premium debt is imposed on the employee.

A claim for determination of employment and employment claims are not combined in the same petition. The claims action is subject to mediation as a condition of filing suit, the determination action is not; files brought together are separated by the court and cause loss of time.

The employer side: SGK inspection, premium debt and administrative fines

Reports drawn up by SGK inspectors or auditors give rise both to retrospective premium assessments and to administrative fines for breaches of declaration and document obligations. The objection routes for the two claims differ. An objection to an administrative fine is made to the Institution within fifteen days of service; the objection suspends collection, and if it is rejected an action is brought before the administrative court within thirty days of service of the decision (Art. 102). Where the fine is paid in advance within the same period, three quarters of it is collected. For premium debt and the related payment order, the labour court is competent (Art. 88). Statements given and records submitted at the inspection stage set the framework of the subsequent objection; for this reason, the firm enters the file at the inspection stage.

Time limits and points to note

• The action for determination of employment is brought within five years from the end of the year in which the employment took place (Art. 86); where an employment commencement declaration was filed or the employment was established by the Institution, this period does not run under the practice of the Court of Cassation.
• The insured employment commencement declaration is filed before work begins, save for the exceptions in the law (Art. 8); a declaration made on the first day of work counts as a late declaration and gives rise to an administrative fine.
• Waiver of the action, admission or settlement has no effect in an action for determination of employment; a private agreement with the employer does not establish insured status.
• After the determination judgment, the retirement calculation is redone; in some files, completing the missing days changes the date of entitlement to a pension.

How a file is handled at the firm is explained on the how we work page.