Action for Determination of Service (Hizmet Tespit Davası)

Many people who have worked for years discover, when they apply for retirement, that their premium day count is short. Only then do they learn that part of their employment was never reported to the SGK (Social Security Institution), or was reported at the minimum wage. A service determination lawsuit (hizmet tespit davası) is a lawsuit that allows employment that the employer failed to report, or under-reported, to the Social Security Institution to be established by court decision and entered into the insured person's service records.

The lawsuit is not merely a retroactive correction; it directly affects the retirement date, the amount of the pension to be awarded, and the calculation of employment receivables such as severance pay. For this reason, it is very important not to miss the deadline and to collect evidence carefully before filing the lawsuit.

In which situations is a service determination lawsuit filed?

• Employment that was never reported: The worker was employed entirely off the books, without an entry declaration being filed.
• Under-reporting of days: Fewer days were reported than were actually worked during the month, or certain months were skipped.
• Late entry, early exit: The start date of employment is shown as later than the actual date, or the end date is shown as earlier.
• Under-reporting of wages: A lower amount than the actual wage was reported as earnings subject to premiums. In practice, a lawsuit filed in this situation is also called a determination of earnings subject to premiums, or a wage determination lawsuit.

The work must genuinely be based on an employment contract, meaning the worker must have worked under the employer's direction in return for a wage. Situations such as family assistance or a partnership relationship are examined separately for the purposes of service determination.

The five-year forfeiture period

Under Law No. 5510, a lawsuit to establish employment not reported to the Institution must be filed within five years, starting from the end of the year in which the service was performed. For example, for unregistered employment during a given year, the period begins to run from 31 December of that year. This period is a forfeiture period; if a lawsuit is filed after it has expired, the court dismisses the case without examining the merits of the claim.

However, if the employment was partially reported to the Institution through documents such as an entry declaration or periodic payroll, or if the employment was identified by the Institution's inspectors, then under the practice of the Court of Cassation (Yargıtay) the five-year period is not applied to uninterrupted employment that became known to the Institution. Which circumstances fall under this exception is a technical matter shaped by Court of Cassation case law. Every case is unique; whether the period has run must be assessed separately on the basis of the concrete records.

In calculating the period, whether the employment was uninterrupted is decisive. In Court of Cassation practice, for uninterrupted employment at the same workplace, the period is, as a rule, started from the end of the year in which the uninterrupted employment ended. If the employment was intermittent, or if partial reports from the workplace give the impression of interrupted employment, the period is assessed separately for each period; in that case, employment from earlier periods may not be establishable because the period has expired. For this reason, as soon as a gap is noticed in your e-Devlet service statement, an assessment should be made period by period.

What evidence is used in the lawsuit?

Service determination lawsuits concern public order; the court does not content itself with what the parties submit but investigates the evidence on its own initiative. Even so, for the process to proceed smoothly, the plaintiff must submit all the information and documents in their possession:

• Bank account statements and transfer records showing salary payments,
• Workplace entry cards, attendance records, shift schedules and work correspondence,
• Payroll witnesses who worked at the workplace during the same period and have registered employment records,
• Impartial witnesses who know about the employment, such as employees or owners of neighboring workplaces,
• Photographs, messages, and documents signed on behalf of the employer.

The court also investigates whether the workplace was actually operating during that period, using SGK records, tax records and professional chamber records. The consistency of witness statements with these official records is the main factor that determines the direction of the decision.

The lawsuit process step by step

1. Review of the service statement: The SGK service statement obtained through e-Devlet is compared with the actual period of employment.
2. Identifying evidence and witnesses: The documents and witnesses that will prove the employment are identified.
3. Filing the lawsuit: The lawsuit is filed against the employer in the labor court; the Social Security Institution also takes part in the case.
4. Investigation and hearing of witnesses: The court obtains the Institution's records, hears the witnesses, and, if necessary, orders an investigation by the local law enforcement (zabıta).
5. Finalization of the decision and registration with the SGK: The finalized decision is sent to the SGK and the services are added to the insured person's record.

Unlike employment receivables lawsuits, service determination lawsuits are not subject to mandatory mediation; they can be filed directly in the labor court. The case is heard in the labor court, or, in places where there is no labor court, in the civil court of first instance sitting as a labor court.

The results of winning the lawsuit

The services that are established may change the insurance start date and the total premium day count; this can lead to significant differences in the retirement age and the pension calculation. The under-reported premiums are collected from the employer. Establishing the actual wage also provides an important basis for severance pay and other receivables lawsuits to be filed in the future. For premiums that were established by court decision but not paid on time, and for the related late-payment surcharges, the Institution separately carries out collection proceedings against the employer; as a rule, this liability is not placed on the insured person. Re-checking the service statement after the decision becomes final and confirming that the record has been entered correctly is also part of the process. For related receivables, you may see our employee receivables lawsuit page and our severance pay calculation tool.

Points to pay attention to

• Check your service statement regularly while you are still working, not only after you have left the job.
• Payment of salary in cash makes proof harder; keep every record documenting payments.
• Try to reach payroll witnesses instead of relying only on close relatives as witnesses.
• If the workplace has been transferred or closed, the acquiring employer and company records must also be examined separately.

Our office's support

Our office follows every stage of the process, from reviewing the service statement to identifying witnesses, from investigating SGK records to having the decision registered with the Institution. Planning the determination lawsuit together with the employment receivables relating to the same employment is also assessed.