Turkish legal system has been changed with the new provisions introduced by the Law on Mediation in Civil Disputes (Law No:6325) (the "Mediation Law") and the Regulation Regarding Law on Mediation in Civil Disputes (the "Mediation Regulation"). The concept of mediation, which has been adopted as an alternative dispute resolution method in Turkey, is regulated as mandatory and optional. The reason for the enactment of the Mediation Law is an inevitable result of the Turkish Courts' overwhelming caseload.
This new concept of mediation in Turkey also affected the Turkish Labour Code (Law No: 4857) (the "Labour Code") and with the enactment of Law on Labor Courts (Law No: 7036) on 2017, there have been many amendments in the Turkish Labour Code to ensure the compliance with this new concept. The mediation process has become a mandatory step to be taken by the employees before initiating a lawsuit.
The Mediation Law shall apply to private law disputes arising from the transactions that the parties can freely utilise. Including those with a foreign element. Therefore, foreign employees will also be subject to the mediation procedure. According to the Law on Labour Courts, it is mandatory to apply to the mediator if the case is about compensation claimed by the employee or the employer and re-employment cases.
We would like to give brief information regarding re-employment cases before we continue with the impacts of the mediation procedure on employment relationships. According to the Labour Code, in order to terminate the indefinite-period employment contract of an employee having at least 6 months service in a workplace operating with at least 30 employees; the employer must present a valid ground either i) arising from the capacity or conduct of the employee or ii) arising from the requirements of the establishment, workplace or the job. Economic crisis, underperformance or insufficiency of the employee (provided that such is proved with evidence) or liquidation of the company may be considered as valid reasons for terminating a contract. If the employee whose contract is terminated is in the opinion that his/her termination was not based on valid grounds, such employee is granted with the right under the Labour Code to claim for re-employment within 1 month following the date of his/her receipt of the termination notification by the employer. In the event that the employer does not re-employ the employee, the employer shall be liable to pay a special compensation regulated under the Labour Code in addition to the termination related payments.
Although the employees should have made the re-employment claim to the courts in the past, with the enforcement of this new legislation, the employee in question shall apply to the competent mediation office before filing a lawsuit, if the employee wishes to apply for re-employment or claim his/her receivables arising from the employment relationship. Otherwise, the court will dismiss the case without prejudice due to the lack of compliance with the Mediation Law. Furthermore, if the employee has applied to the mediation and the parties have not come to an agreement, then the employee should submit the final disagreement minute prepared by the mediator to the court. If the employee fails to submit the minute document to the court in accordance with the Mediation Law, the court will give an additional one week to the employee in question. If such employee fails to submit the minute once again, then his/her case will be dismissed by the court. Moreover, the employee shall file a lawsuit within two weeks as of the preparation of the final minute by the mediator.
According to the Mediation Law, the mediator shall be a real person who is registered to the mediators' registry operated by the Ministry of Justice. The mediator shall be appointed by the Mediation Office unless the parties have agreed on one of the mediators listed by the Mediation Office. The mediator shall be objective and shall act equally toward the parties. It is very important to say that mediation is a very private procedure. In other words, the mediator and the parties who attend the mediation meeting shall keep all information provided during the mediation strictly confidential. Likewise, the mediator with the attorney license cannot act as an attorney in the relevant lawsuit. Furthermore, no court, arbitrator or administrative authority may require the disclosure of (i) invitation/request for mediation, (ii) opinions and offers submitted by the parties to conclude the dispute by mediation, (iii) recommendations or acceptance of certain claims and (iv) the documents prepared concerning the mediation process.
The mediator shall conclude the process within three weeks as of the date of his/her appointment. This term can be extended by the mediator only for one more week. Whereas the period of limitation and prescription stops as of the application to the mediation office by one of the parties until the date that the final minute recorded by the mediator. The parties or their attorneys may attend the mediation meeting. Moreover, the employer who is a party to the mediation process may appoint one of its current employees to represent the employer during the mediation process. In such a case, the employer shall give written authorization to be represented.
In the case that the parties mutually agree to the re-employment of the employee in question, then they shall also determine:
(i) the re-employment date,
(ii) the amount of the salary and all other rights of the employee to be paid covering the maximum of 4 months for the period of unemployment,
(iii) if the employer does not allow the employee to work and does not fulfil its obligation to re-employ the employee, then the amount of the compensation to be paid by the employer.
In addition to above, if the employee does not show up at the workplace on the determined re-employment date, then the termination shall be valid, and the consequences of the valid termination shall apply.
Furthermore, once the parties make the agreement, they cannot file a lawsuit for those issues concluded and recorded at the end of the mediation procedure. For instance, if the employee accepts compensation instead of re-employment at the end of the mediation procedure, then he/she cannot file a lawsuit for re-employment. Otherwise, the case shall be dismissed from the very beginning.
Lastly, if the parties come to an agreement, then the parties may request an annotation to be added by the mediator for the execution of the agreement. This document with the annotation of the mediator shall be deemed verdict. Moreover, if the agreement is executed by the mediator, the parties and the attorney of each party, then such agreement also shall be deemed verdict.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.