According to Article 9 of the Constitution, "Judicial power shall be exercised by independent and impartial courts on behalf of the Turkish Nation". As it is understood from the relevant article, the parties who have a legal dispute between them can only request the courts to issue a final judgement by conducting a trial to resolve this dispute. However, in recent years, various alternative dispute resolution methods have been introduced and parties have been allowed to reconcile through alternative dispute resolution methods for reasons such as the prolongation of trial periods due to the increasing workload of the courts and the delay in citizens' access to justice due to prolonged periods.
- DEFINITION AND LEGAL NATURE OF ARBITRATION
In its simplest definition, arbitration is the final settlement of a dispute through third parties (arbitrators). In the doctrine, arbitration is defined as "the agreement of the parties that a final and binding decision on disputes between them will be made by arbitrators"1. In addition, according to the definition in the decisions of the 9th Civil Chamber of the Court of Cassation, arbitration is ".... a dispute resolution method in which the parties authorize private persons called arbitrators instead of the state judiciary to resolve disputes."2
Articles 407-444 of the Code of Civil Procedure (CCP) No. 6100, which regulates the arbitration procedure, include provisions such as filing of pleadings and reply pleadings, collecting evidence, and conducting expert examinations when necessary. In this respect, it is possible to say that mediation and arbitration are completely different. As it is known, mediation follows an interest-based approach without conducting a judicial activity, whereas, in arbitration, a judicial activity similar to courts is carried out within a rights-based approach. In addition, while mediation is based on the parties finding their own solutions and resolving the dispute together, in arbitration, the solution is left to the arbitrator/arbitrators, not the parties. It is known that there are different opinions in the doctrine as to whether arbitration is an alternative dispute resolution mechanism, especially in terms of conducting trial-like activities. According to one view, arbitration is not an alternative dispute resolution method due to its legal nature, but an exceptional judicial remedy3, while according to the other view, arbitration is an alternative dispute resolution method in any case, since the resort to arbitration is determined by the preferences of the parties4.
Beyond all these debates, it is undisputed that arbitration is an important alternative remedy for individual labor law disputes, as it is faster than courts. In addition, the parties may freely appoint the arbitrators in arbitration proceedings. In this way, by selecting experts in the dispute as arbitrators, there is no need for time-consuming processes such as expert examination and the dispute is resolved directly by the arbitrators who are experts in the subject matter. Furthermore, since the arbitration procedure can be determined by the parties, the resolution of the dispute may be possible through arbitration in a more practical manner compared to court proceedings.
- CONDITIONS FOR APPLYING TO ARBITRATION IN INDIVIDUAL LABOR LAW DISPUTES
The procedures and principles regarding arbitration proceedings are regulated in the CCP. According to the provisions of the CCP, one of the first conditions for resorting to arbitration is that the subject matter of the dispute is arbitrable. The arbitrability of the subject matter of the dispute depends on the parties' ability to freely dispose of the subject matter of the dispute. As a matter of fact, Article 408 of the CCP titled "Arbitrability" stipulates that "...disputes arising out of matters that are not subject to the will of the two parties are not arbitrable" and that arbitration cannot be resorted to in matters that the parties cannot freely dispose of.
Another condition for resorting to arbitration is the conclusion of an arbitration agreement between the parties. Arbitration agreement is defined in Article 412 of the CCP as "...the agreement of the parties to leave the resolution of all or part of the disputes arising or that may arise from a contractual or non-contractual legal relationship to the arbitrator or arbitral tribunal". The second paragraph of the same article stipulates that the arbitration agreement may be concluded as a condition of the articles of association between the parties or as a separate agreement, while the third paragraph stipulates that the arbitration agreement must be in writing5.
As can be seen, the arbitrability of the dispute between the parties and the existence of a written arbitration agreement are the prerequisites for the parties to submit to arbitration. These conditions must be fulfilled in order to apply for arbitration in individual labor law disputes.
- ARE ALL INDIVIDUAL LABOR LAW DISPUTES ARBITRABLE?
It is seen that the first and only regulation enabling arbitration in individual labor law disputes is included in the Labor Law No. 4857, and accordingly, only Article 20 titled "Appeal to termination and its procedure" regulates that the parties may go to a special arbitrator. According to the article, "The employee whose employment contract has been terminated must apply to the mediator in accordance with the provisions of the Labor Courts Law, with the claim that the reason was not given in the termination notice or that the reason given was not a valid reason, within one month from the date of notification of the termination notice. If no agreement is reached at the end of the mediation activity, a lawsuit can be filed at the labor court within two weeks from the date of the final report. If the parties agree, the dispute may be referred to a special arbitrator instead of the labor court within the same period."
Except for Article 20 of the Labor Law, which regulates reinstatement lawsuits for invalidity of termination, there is no legal provision that provides for arbitration for individual labor law disputes. In this respect, it is clear that the legislator has not made arbitration possible for all disputes arising out of employment contracts. In the precedents on the subject, it is clearly seen that it is accepted that arbitration agreements made for the resolution of disputes within the jurisdiction of the labor courts, except for reemployment cases, are not valid6.
In summary, only lawsuits for reinstatement based on the claim of the invalidity of the termination are subject to arbitration in individual labor law disputes. However, for other individual labor law disputes such as claims for severance pay, notice pay, and compensation arising from work accidents, even if an arbitration agreement is made between the parties, it is not possible to proceed to arbitration.
- WHEN SHOULD AN ARBITRATION AGREEMENT BE CONCLUDED FOR INDIVIDUAL LABOR LAW DISPUTES?
It can be seen that there is no specific regulation regarding when an arbitration agreement should be made in the provisions of the CCP that govern the fundamentals of the arbitration agreement. On the contrary, in the precedent Court of Cassation decisions, it is accepted that arbitration agreements made between the employee and the employer during the establishment or continuation of the employment contract are invalid, in accordance with the principle of employee protection that dominates the labor law. As a matter of fact, the "principle of employee protection" requires the acceptance that the economically weak worker may not be able to evaluate the content of the arbitration agreement in a healthy manner at a stage when he/she is under pressure due to income concerns. In its decision dated 05.06.2024, the 9th Court of Cassation, E. 2014/14507, K. 2014/18314, stated that "If the arbitration agreement is immoral, its validity cannot be mentioned. This situation will generally manifest itself in cases where one party uses its economic and social superiority over the other party in the arbitration agreement to impose matters that will disrupt the equality in its favor in the arbitration agreement, or where one of the parties is given the opportunity to select more than half or all of the arbitrators (Dr. Yavuz Alangoya, Medeni Usul Hukukumuzda Tahkimin Niteliği ve Denetlemesi, İstanbul-1973, Sh. 86). An arbitration agreement concluded in this manner shall be null and void pursuant to Article 20 of the Code of Obligations." This view of the Court of Cassation has gained stability and has found its place in its subsequent decisions7, and it is accepted that the employee is dependent on the employer during the establishment of the employment contract and as long as the employment contract continues, and for this reason, arbitration agreements concluded during the establishment or continuation of the contract are invalid, and only arbitration agreements concluded after termination are valid.
According to the established Court of Cassation precedents, although an arbitration agreement between the employee and the employer is considered valid, provided it is concluded after the termination of the employment contract, the mere condition that the date of the arbitration agreement is after the termination date of the employment contract does not automatically make the arbitration agreement absolutely valid. As a matter of fact, the general terms regulated under the Code of Obligations must also be included in arbitration agreements. The Court of Cassation, 9th Civil Chamber, in relation to the issue, has deemed the arbitration clause in the protocol signed by the parties regarding the termination of the employment contract by mutual agreement and its consequences invalid, because of the fact that the witnesses heard in the case stated that the employer had imposed an obligation to sign these documents, and also pressured employees to sign them by threatening not to provide references, that since the protocol also included the provision for the payment of labor rights, the payment of these rights was conditioned on the acceptance of the arbitration clause in a way, that the employer, by using its economic and social superiority over the employee, forced terms in the arbitration agreement which disrupted the equality in favor of the employer, although decided after the termination8.
- WHAT ARE THE LEGAL CONSEQUENCES OF THE EMPLOYEE FILING A LAWSUIT IN THE LABOR COURT DESPITE THE EXISTENCE OF A VALID ARBITRATION AGREEMENT?
As stated above, recourse to arbitration under the mandatory provisions of the CCP depends on the arbitrability of the subject matter of the dispute and the conclusion of an arbitration agreement between the parties. In the event that there is a valid arbitration agreement between the employee and the employer, the employee, who will request reinstatement with the claim of invalidity of the termination, must first apply to the mediator within ONE month from the notification of the termination notice, and if no agreement is reached in mediation, the employee must apply to arbitration within the two-week period of filing a lawsuit.
Despite the existence of a valid arbitration agreement, the employer may file an arbitration objection if the reinstatement lawsuit is filed before the Labor Courts instead of applying to arbitration. According to Article 116 of the CCP, an objection to arbitration is one of the preliminary objections and, according to Article 117, it must be raised in the reply petition; otherwise, it will not be heard by the judge and/or will not be taken into consideration by the judge ex officio.
If the employer raises an objection to arbitration within the prescribed time limit, if the judge finds that there is a valid arbitration agreement and accepts the employer's objection to arbitration, he/she shall dismiss the case out of procedure in accordance with Article 413 of the CCP.
Footnotes
1 Pekcanıtez/Yeşilırmak, Pekcanıtez Usȗl, s. 2597.
2 9th Civil Chamber of the Court of Cassation, 2014/22697 E., 2014/26896, K, 10.03.2020, T. 17.09.2014.
3 Prof.Dr.Süha Tanrıver, "Hukuk Uyuşmazlıkları Bağlamında Alternatif Uyuşmazlık Çözüm Yolları ve Özellikle Arabuluculuk" , https://dergipark.org.tr/tr/download/article-file/397938
4 Oğuz, Özgür: Türk İş Hukukunda Dava Şartı Olarak Arabuluculuk
5 Code of Civil Procedure 412/3 "The arbitration agreement shall be concluded in writing. The defendant's response to the written claim signed by the parties or to a communication medium such as letters, telegraphs, telexes, faxes or electronic media exchanged between the parties, or to claim the existence of an arbitration agreement in the petition, in order to be deemed to have fulfilled the written form requirement. It is sufficient that there is no objection in the petition. In the event that a document containing an arbitration clause is sent in order to become a part of the original contract, the arbitration contract shall be deemed to have been concluded."
6 9th Civil Chamber of the Court of Cassation, E. 2014/22687, K. 2014/26896, T. 17/09/2024.
7 9th Civil Chamber of the Court of Cassation, E. 2016/21367, K. 2017/14609, T. 02.10.2017.
8 9th Civil Chamber of the Court of Cassation, E. 2007/28539, K. 2007/26478, T. 17.09.2007.
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