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Translated from Turkish by Tim Drayton
Articles 107, 109 and 119 of the Code of Civil Procedure
Summary of claimant’s claim:
The claimant’s attorney, averring that coal production work was put out to tender under a service procurement contract at the … underground zone under the defendant’s charge, his client worker worked as a subcontractor’s employee registered at the workplace belonging to the defendant, the primary employer-sub-employer relationship had been set up contrary to the law and was based on contrivance and his client should be afforded all financial entitlements enjoyed by payrolled workers with the same duties and seniority within the defendant entity, sought affirmative adjudication of claims in respect of monthly wage, overtime, rest day, national festival and public holiday payments, bonus and additional payments, social allowances, additional compensation, shift premiums and fare and meal payments.
Summary of defendant’s reply:
The defendant … Lignite Operation Facility Directorate’s attorney, averring that the mining license holder and party to the tender contract at issue was … Coal Operations Authority while his client had a separate legal identity from … Coal Operations Authority and the directing of the claim against his client was erroneous, sought dismissal of the claim.
The defendant … Authority’s attorney, averring that there was no primary employer-sub-employer relationship between his client authority and the subcontractor the claimant worked for, his client the tendering authority tendered out the works as a whole, the procedure complied with legislation, there was no contrivance and the claimant’s allegations and claims were unjust, sought dismissal of the claim.
Summary of court’s ruling:
Based on the evidence gathered, a judgment of dismissal was ordered by the court for the drafted reasons, on the merits with respect to the claims for overtime, rest day, national festival and public holiday pay, while on procedural grounds for lack of legal interest with respect to the other claims, on the grounds that the claimant could not bring action of the nature of an unquantified claim action.
The claimant’s attorney sought cassation review of the judgment.
1-In accordance with the documents in the file, the evidence gathered and the compelling statutory reasons underlying the decision, dismissal was warranted of all the claimant’s cassation objections apart from the contents of the section below.
2-The dispute between the parties that must initially be resolved revolves around whether the claim can be brought in the form of an unquantified claim action.
Even if dismissal was ordered by the court for lack of legal interest, deeming that the claim could not be submitted in the form of an unquantified claim action, as far as the claims apart from amounts due in overtime, rest day, national festival and public holiday pay were concerned, dismissal on procedural grounds was ill-founded.
Article 107 of the Code of Civil Procedure number 6100 that took effect on 01.10.2011 brought with it the acceptance as a new type of lawsuit, absent from the repealed Code of Civil Procedure number 1086, of the unquantified claim and declaration action.
According to Article 107 of Law number 6100:
“(1) In cases where he cannot be expected to fully and precisely determine the quantity or amount of the claim on the date the claim is filed or this is impossible, the creditor may file an unquantified claim action by specifying the legal relationship and a minimum quantity or amount.
(2) As soon as the quantity or amount of the claim becomes fully and precisely determinable ensuing from information disclosed by the opposing party or the examination proceedings, the claimant may increase the claim he specified at the outset of the proceedings without being subject to the bar on expansion of the claim.
(3) Additionally, in cases where partial performance action can be filed, declaratory action may also be brought and legal interest will be considered to exist in such cases.”
This article, which was not included in the government draft, was initiated by the … Justice Commission, adopting the justification of affording the broadest protection within the context of the freedom to pursue rights to a person engaged in the pursuit of a right in respect of a claim whose quantity or amount is not essentially fully determinable at the outset by eliminating the difficulties they encounter in the legal system, and was finally adopted.
To enable submission of the claim in the form of an unquantified claim action, it must not be possible for the quantity or amount of the claim at issue to be fully and precisely determined by the claimant party on the date the claim is filed. Unquantifiability must hinge on the claimant being in a position in which he truly cannot be expected to determine the quantity or amount despite exercising the requisite care and attention or this is objectively impossible.
Through the explanation in the justification of the article, “To enable the creditor to bring an action of this kind, it must be truly impossible for him to fully and precisely determine the quantity or amount he will claim or for this to be objectively impossible. If the amount of the claim to be brought is known or determinable, a claim of this kind cannot be brought because legal interest is to be sought here, too, as it is in all lawsuits, and in such case the existence of legal interest cannot be spoken of. In particular, when attention is given to the new provisions on partial claims and these are considered together, it is unacceptable for recourse to be made to this avenue in cases where determination is possible at the outset,” it is intimated that, in the event the claim is of a determinate or determinable nature, it is impossible to bring an unquantified claim action and draw on the opportunities this lawsuit confers.
Criteria of a guiding nature as to resolving the issue were included in Article 107/2 of Law number 6100. Provision has been made in the said paragraph of the article that as soon as the quantity or amount of the claim becomes fully and precisely determinable ensuing from information disclosed by the opposing party or the examination proceedings, he may increase the claim he specified at the outset of the proceedings without being subject to the bar on expansion of the claim, and quantifiability has been described in the justification of the article as “the result of information submitted and evidence disclosed by the opposing party or of the investigation and examination of evidence (for example, the result of expert or physical inspection examination).”
The claim must be deemed unquantified in situations in which the claimant lacks the requisite information and documents whose availability is needed to make the quantity or amount of the claim determinable, is (truly) unable to access these documents in the preparatory run-up to filing the claim and hence quantification of the claim will become possible with the submission of information and documents in the opposing party’s possession.
The mere existence of dispute between the parties as to the quantity of the claim does not mean that the claimant cannot be expected to quantify the relief sought. What matters is the expectation that the claimant cannot quantify the relief sought (H. Pekcanýtez, Unquantified Claim Action, … 2011, p. 45; H. Pekcanýtez/O. Atalay/M. Özekes, The Law of Civil Procedure, 14th Impression, … 2013, p. 448). Were the mere existence of dispute over the quantity of the claim between the parties or the amount being open to debate to be deemed sufficient for the bringing of an unquantified claim action, it would be necessary to concede to virtually all actions being unquantified claim actions and this is contrary to the purpose of the statute because action is in any case brought because a dispute exists and the dispute comes before the court. What is crucial is whether the claimant is capable of quantifying his claim. Here, sight must not be lost of the need for separate examination of whether the claim is quantifiable and whether it is provable. If it is objectively possible for the claimant to quantify the claim he is making but it is impossible for him to prove in the statutorily stipulated manner (with the evidence in his possession) the claim he is able to quantify, there can be no speaking of an unquantified claim action here, either, because quantifying a claim and proving it are different things. The claimant may be able to quantify the claim he has brought into issue with great precision but may not always be in a position to prove it. Consenting otherwise would not only turn every difficult-to-prove claim into an unquantifiable claim, but might lead to a situation that is contrary to both the purpose of the statute and general principles.
It must be deemed that an unquantifiable claim action may be instituted in situations, too, in which the quantifiability of the claim is dependent on the perusal of the evidence to be conducted at the examination stage, expert examination or such other procedures as physical inspection. However, recourse in proceedings to expert examination does not suffice for the bringing of an unquantified claim action. If the claimant can quantify the claim at the time he files it even though application is made to expert examination in the proceedings, an unquantified claim action may not be instituted (C. Simil, The Unquantified Claim Action, I. Impression, Istanbul 2013, p.225).
There can also categorically be no speaking of a specific type of action or actions brought by specific persons being ab initio quantified or unquantified claim actions. Classification must be made by applying the criteria relating to unquantified claim actions to the case in hand with regard to the claim at issue in each action.
In cases where the judge is awarded the power of discretion to assess and determine the amount of the claim (e.g. Articles 50, 51 and 56 of the Turkish Code of Obligations), it must be considered impossible for the claimant to be able to fully and precisely determine the quantity or amount of the claim on the date the claim is filed as the claim may become determinate as a result of the power of discretion the judge will exercise. For example, in labour law practice, it has been deemed by the Court of Cassation in cases where overtime, rest day, national festival and public holiday payment claims do not rely on written documents or workplace records, and rely on witness testimony, that a discretionary deduction must be made at an appropriate rate to be arrived at taking account of the period and amount of the claim involved in the calculation. Since, in this case, the amount of the discount that will be applied at the judge’s power of discretion to the amount of the claim computed on the basis of witness testimony is not determinable ab initio, the claim must be considered unquantified.
Law number 6100 has brought with it a broadening of the freedom to pursue rights in respect of unquantified claims by affording the possibility of filing unquantified claim actions within the framework specified above; while, in conjunction with this, the possibility of bringing partial claims in the absence of legal interest has been restricted, it has not been fully annulled.
It has been witnessed from time to time that the boundary in the new arrangement pertaining to the unquantified claim action ushered in with Law number 6100 and the partial claim has not been fully charted and one is employed in place of the other. However, the purpose and nature of these two lawsuits differ. If the claim is quantified or quantifiable, an unquantified claim action cannot be instituted; however, should the preconditions be fulfilled, a partial claim may be filed.
Given that, while the possibility of instituting a partial claim has been restricted, it has not been fully eliminated, even if unquantified claim actions may not be instituted in respect of quantified claims, it is possible to bring partial claims if the preconditions are fulfilled and there is legal interest. Otherwise, merely two possibilities would come into play of either instituting an unquantified claim action or instituting a full quantified claim action and, in that case, effective application of the provision of Article 109 of Law number 6100 concerning the partial claim would be excluded because action could in any case be brought in an unquantified claim action drawing on the opportunities that the unquantified claim action affords; should the claim be quantified, then only a full performance action could be instituted. However, in line with the principle that the legislator does not engage in futility, partial claims may be brought, considering that provision has been made for the partial claim in the said article and taking account of the limitations in the statute.
It must also be made clear at this point that should, despite non-fulfilment of the preconditions, a claim be brought in the statement of claim as an unquantified claim action, the course indicated is to reject the claim for lack of legal interest without granting the claimant extra time because the statute has not permitted such action to be instituted when the claim is quantifiable. In such a case, the claim must be rejected for lack of legal interest in instituting an unquantified claim action and no extra time may be granted because the relief sought here is clear and, thus, it is impossible to grant extra time through application of Article 119/1-đ of Law number 6100. Since an unquantified claim action has been filed although it actually should not have been and this deficiency cannot be rectified by granting extra time, the claim must be rejected for lack of legal interest. The legal interest here is not a legal interest whose deficiency lends itself to subsequent rectification because legal interest that does not exist at the time the claim is filed is not a legal interest whose deficiency is rectifiable under circumstances in which this is clearly known by the court, too. To concede the opposite would amount to affording the claimant an additional opportunity by granting extra time for the relief sought which is actually clear to be amended by the claimant and for non-existent legal interest to be brought into being and there is no procedural possibility of this. Such a situation would also be contrary to the principle of equality among parties (H. Pekcanýtez/O. Atalay/M. Özekes, The Law of Civil Procedure, 14th Impression, … 2013, p. 454). Apart from this, if, while a minimum amount has been stipulated in the claim that has been brought and this is understood to be a portion of the amount due, it cannot be ascertained whether this is an unquantified claim action or a partial claim along with a quantifiable amount due, under these circumstances the relief sought will not have been specified in the form required by Article 119/1-đ of Law number 6100. If the claim, claim type and kind of action are not clearly ascertainable and the claim is unclear, pursuant to Article 119/2 of the same statute, the claimant is to be given an absolute one-week time period and asked to specify whether the claim is an unquantified claim action or a partial claim. Following this granted time period, a course should be followed in keeping with the claimant’s clarification of his claim. If the claim, while taking the form of an unquantified claim action as per the claimant’s clarification, does not in fact fulfil the preconditions for an unquantified claim action, then procedure in the above manner should be adopted and the claim rejected for lack of legal interest. If, following clarification, the claim fulfils the preconditions for an unquantified claim action, the case should be heard and adjudicated as per the consequences of this lawsuit and, if it fulfils the preconditions for a partial claim, as per the consequences of the partial claim (Our Chamber’s ruling number 2012/30563 esas 2012/30091 karar of 31.12.2012).
In the case of combination of actions (objective joinder of claims) regulated in Article 110 of Law number 6100, defined as the assertion by the claimant of more than one mutually independent basic claim against the same defendant in the same statement of claim, given there are deemed to be as many cases as the number of claims and, pursuant to Article 297/2 of the same statute, separate adjudication must be made of each case, there must in this case also be separate examination regarding each claim as to whether the claims asserted in the statement of claim are unquantified claims.
To conclude from all the above commentary, it must be noted that as a rule it is incorrect and impossible to make an initial categorization as quantified or unquantified claim action over amounts due arising from labour law. Consequently, the ability to institute an unquantified claim action under labour law is dependent on fulfilment of the requisite preconditions for the bringing of such action. If these preconditions are fulfilled, an unquantified claim action may be instituted under labour law, otherwise it may not (C. Simil, The Unquantified Claim Action, I. Impression, Istanbul 2013, p.414). This applies mutatis mutandis to the partial claim.
The existence of dispute between the parties over the period of employment and amount of remuneration as is frequently encountered in claims arising from labour law does not render the claim unquantified. In the same way, the employee is able to specify the amount of time worked and his wage. It is also contrary to normal life experience for an employee not to know since when he has worked or how much he is paid. It is contrary to evidentiary rules, too, to presume that witnesses know or an expert will know the duration of employment that the employee himself does not know. Likewise, the court can hardly be expected, either, to know a matter that the party has failed to back up with hard evidence and declares himself ignorant of.
Non-compliance by employers with obligations arising under substantive law (such as compiling documents and payrolls), the untruthfulness of documents they compile or their denial of amounts due to the employee prior to the claim or failure to discharge them despite acknowledgement do not as a rule enable the claimant to institute an unquantified claim action. Even under such circumstances, if the employee can determine the quantity or amount of the claim, he may not institute an unquantified claim action (Simil, p.412).
In the case at hand, the claim was brought as an unquantified claim action. In the statement of claim, with it alleged that the relationship between the defendant and non-litigant employer was contrived and stated that the claimant should also be paid the remuneration paid to peer employees with the same duties and seniority within the defendant entity and the claimant should also benefit from all other financial entitlements afforded, amounts due in respect of monthly wage, overtime, rest day, national festival and public holiday payments, bonus and additional payments, social allowances, additional compensation, shift premiums and fare and meal payments were claimed. Dismissal was ordered by the court on procedural grounds for lack of legal interest, with it deemed that, apart from the claims for overtime, rest day, national festival and public holiday payments, the claim could not be brought as an unquantified claim action. However, the claimant’s attorney averred that, out of the evidence, reliance was made on the defendant’s records in the matter of determining peer employees’ wages and financial entitlements and, in the event the claim was vindicated, full and precise quantification of the employment claims would become possible from determination of the wages paid and entitlements afforded to peer employees through disclosure of information and documents in the possession of the opposing party. Consequently, it is possible for the claim to be filed in the manner of an unquantified claim action also in respect of the amounts due regarding which dismissal was ordered by the court and there is legal interest in doing so. It was contrary to procedure and the law for dismissal to be ordered on procedural grounds when the merits should have been addressed with respect to the said claims, too.
The decision was rendered unanimously on 28.12.2016 that the ruling brought to cassation review be QUASHED for the reasons set out above and the cassation fee obtained in advance be refunded to the relevant party on request.