Mediation in Turkish Labor Law

I. INTRODUCTION

The first section of the draft law on Labor Courts numbered 31853594-101-1397-911 and dated 25.05.2017 was approved by the General Assembly on 11.10.2017, which has not yet been published in the Official Gazette. The articles of the draft law, which are prepared according to the articles passed by the General Assembly and expected to be in effect as of January 2018, are as follows:

II. NEW REGULATIONS:

A. CAUSE OF ACTION:

Pursuant to article 3 of the enacted draft law on mandatory mediation, mediation has been made mandatory in terms of the following cases making the application to mediation a pre-condition for lawsuits.

–  For claims concerning receivables-damages based on individual or collective bargaining agreements and the law, also,

– for re-employment lawsuits, applying for meditation for the lawsuit is now mandatory.  Mediation for re-employment lawsuits has been specially regulated and will be explained below.

If a lawsuit is filed without applying to mediation, the lawsuit shall be rejected on procedural grounds.

It is not mandatory to apply to mediation for claims concerning pecuniary and non-pecuniary damages due to occupational accidents and diseases and subsequent recourse actions. In such cases, the employee can file a lawsuit directly against the employer.

In terms of the mentioned cases, mandatory mediation is a cause of action and will be taken into consideration by the courts.  In other words, if it’s understood that the lawsuit has been filed without applying to a mediator, the lawsuit will be rejected on procedural grounds for the absence of a cause of action.

The employer needs to apply to a mediator and meet with the employee through a mediator in order to file a lawsuit against the employee at a labor court for issues including; training costs, penalty clause, damage of goods, leaving the job without complying with the notice period. Also, the employee needs to choose a mediator and request a meeting with the employer through the mediator in order to file lawsuit for receivables or re-employment. It is very important for the mediator to document and record that the request has reached the other party. Because even if one of the parties refuses to attend the meeting, the final report on mediation by the mediator will be added to the statement to be filed and submitted to the court. If not, the case will be rejected.

If the employee and employer ready to file lawsuit, have started the mediation process but the parties have not reached a conclusion, shall attach the final meeting minute or a copy approved by the mediator to the statement indicating that no agreement has been reached. If this obligation is not met or is forgotten the court will issue a warning stating that the last minute must be filed to the court within one (1) week or it shall reject the lawsuit. If the warning is not fulfilled, the court will decide to reject the case by procedure without notifying the other party on the petition.

In this case the, by adhering to timeframe for the minute, that was forgotten and not submitted within one week, should be added to the new petition by filing a lawsuit.

B. THE PROCEDURES FOR APPOINTING AND CHOOSING A MEDIATOR

As a principle, mediators are appointed from those who are registered to the registry of the Mediation Department of the Ministry of Justice and those who volunteer to be mediators. The mediators’ area of expertise in relation with the nature of the dispute should also be stated. (Such as being an expert in calculating labor receivables).

Mediators are listed according to the requested justice commissions of the court of original jurisdiction and these lists are notified to the relevant commissions by the Mediation Department. The commission sends the lists to the mediation bureaus in their respective jurisdiction, or the registry of the civil court of peace that have been assigned to.

Mediation centers and bureaus are opened and active in courthouses such as Çağlayan Courthouse, Kartal Anatolian courthouse, Bakırköy courthouse, Küçükçekmece Courthouse in Istanbul. An application can be made to the registry of the civil court of peace for places without these offices. The list of mediators in the registry is present in in the mentioned courthouses. Mediators will be assigned as listed by the Mediation Department, stating the jurisdiction (Kartal or Çağlayan) which they requested once the law enters into force in January 2018.

A mediator can only choose up to three jurisdictions. The plaintiff employee and employer, have a right to choose a mediator by looking at the areas of expertise from the list provided by these offices and can also consult a mediator of their preference provided that the other party accepts and does not object. If there is no joint action with the other party, the place of application for the appointment of the mediator is; “the mediation bureau located where the counterparty’s/one of the counter parties domicile or workplace is located, or the appointed registry office for places without an established mediation bureau.

The authorized mediation bureau is;

• The bureau located where the other party’s domicile or
• workplace is located

The employee and employer, as a potential plaintiff, shall apply for a mediator at the mediation bureau located where the potential defendant’s domicile or work/workplace subject to dispute, or the Registry of the Civil Court of Peace. As an example, if the employee works at Üsküdar and the defendant-employer’s domicile and workplace is at Üsküdar, the employee shall apply to the Mediation Bureau in Kartal Courthouse.  The employer shall apply to the mediation bureau located at the domicile or the workplace of the employee in order to file a lawsuit.  As the authorities of the mediation offices are determined, these issues will become clearer with application.

Mediators are determined by the mediation bureau in the courthouses based on the lists submitted to the commissions as indicated above. The plaintiff can choose a mediator as pleased as understood from the voluntary nature of the institution of mediation. The issue on how free the plaintiff is in choosing a mediator is controversial as Paragraph 6 of Article 3 of the Law indicates that a mediator can be assigned by a Mediation Bureau.  This will become clear in practice.

The mediator is appointed in the event that there is a mutual agreement on the mediator in the list of the respective jurisdiction by both the potential plaintiff and the potential defendant.

C. AFTER THE APPOINTMENT OF THE MEDIATOR

Employee or employer party who is a potential claimant applying for the mediator, if possible, provides all types contact information regarding the other party.

The Mediation Bureau is authorized to search the contact information records of the parties. The bureau is authorized to request information and documents from the relevant institutions and organizations. The information and document requested from the mediation bureau are provided per law. Institutions and organizations are obliged to provide the requested information and documents to the bureau.

The contact information of the parties is provided to the mediator by the bureau, if needed, the mediator can make an independent research.  For example, the mediator can try to reach the other party by searching the internet. The mediator reaches the parties by using all means of communication and informs the parties about the assignment and invites them to the first meeting.

The assigned mediator is obliged to call the parties to the first meeting as soon as possible.

The counterparty, the potential claimant-employee or employer, can decide not to attend the meeting after the invitation was sent by the mediator. This situation has serious consequences in the law, in terms of future cases, such as being responsible for all litigation expenses and not being eligible for the attorney’s fee even if the non-attending party wins the lawsuit.  Therefore, it is important that the situation is documented and proven; the mediator should document the notification and invitation procedures and send the notification and invitation letter in writing to the other party.  If possible, it will be safer to send a written warning, registered mail.  However, this issue will become clear with the application.

D. PLEA OF JURISTICTION

If the potential claimant-employee or employer, applies to a mediation bureau that is not authorized; the mediator cannot automatically determine whether the bureau responsible for the assignment is authorized. The other party can appeal to the authority of the mediation office by presenting documents regarding the place of residence and work at the first meeting at the latest. If the employer works in Kartal and resides in Şişli, but has applied to the Çağlayan Mediation Bureau even though the potential defendant’s workplace and work is at Kartal, as a result the mediator that is not assigned in the Jurisdiction of Kartal will be unauthorized.  The potential defendant can appeal against this in the first meeting.  However, the defendant cannot appeal against the jurisdiction after the first meeting.

The mediator whose authority is contested will immediately return the file, to be sent to the relevant Civil Court of Peace, to the office that submitted the case. The court decides the authorized office and returns the file without a fee after reviewing the file.  The court decision is notified to the parties by the office in accordance with the provisions of the Notification Law.

If the plea of jurisdiction is declined, mediator is re-assigned and the mediation period of 3-4 weeks starts from the date of re-assignment.

If the plea of jurisdiction is accepted, an application can be made to the authorized bureau within 1 week after the decision is made. The application date to the unauthorized office is accepted as the application date for the authorized office. In this case, the one-month period required to file a re-employment lawsuit will not pass and expire if an application for a new mediator has been made within one week.

E. PLACE OF MEDIATION MEETINGS

The mediation meeting will be held within jurisdiction of the justice commission of the court of original jurisdiction of which the appointing bureau is affiliated to, unless otherwise agreed by the parties. The authorized mediator can be listed in three different jurisdictions and have an office in Şişli. If the employee has worked in Üsküdar, the meetings will be held at the Anatolian side as the authorized mediation office in Kartal courthouse is where the employer’s domicile or workplace is located and the mediator shall go to the Kartal and conduct meetings there. If the parties decide otherwise, they can go to the mediator’s office located in Şişli.

F. HOW LONG WILL IT TAKE FOR THE MEDIATOR TO FINALIZE THE APPLICATION?

The mediator concludes the application within 3 weeks from the assignment date. This period can be extended up to one week if necessary. The mediation period is “3+1” and cannot exceed four weeks. The one week extension can be used if necessary.  The number of sessions (meeting) that are held in the four week period depends on the will of the parties.

G. CONCLUSION OF MEDIATION

Mediation is concluded if;

• The mediator cannot reach the parties
• Meeting aren’t held due to the non-attendance by the parties  or
• An agreement is reached after the meetings or
• An agreement was not possible and the mediator immediately notifies mediation office after drafting the last minute.

H. NOT PARTICIPATING IN THE FIRST MEETING WITHOUT A VALID EXCUSE:

The sanctions of not attending the first meeting without a valid excuse are notably severe. If mediation is concluded due to the non-attendance in the first meeting without a valid excuse by one of the parties (employee or employer), the non-attending party is indicated in the final minute and shall be responsible for all litigation expenses even if this party is the prevailing party partially or completely in future cases. Also this party shall not be entitled to recovery of attorney’s fees.

If both parties do not attend the first meeting, they are responsible for their own litigation expenses in the case to be filed.

İ. MEDIATION FEES

If the parties reach an agreement before the mediator, the mediation fee is equally covered by the parties, unless otherwise agreed upon, according to the Second Part of the annex Mediation Fee Tariff in the Minimum Mediation Fee Tariff. The fees shall not be less than two hours of mediation fee regulated under the First Part of the Tariff.  As of 2017, the hourly wage amount is 120 TL and this figure will not be less than 240 TL.

In meetings for re-employment cases; If the parties reach an agreement, in determining the wages to be paid to the mediator, the sum of the indemnity to be paid to the worker in case of not starting the work and the wages and other rights to be paid for the period of being un-employed, will be accepted as the agreed amount in accordance with the Second Part of the Tariff.  In the second part of the tariff, the fee to be paid to the mediator in the Resolution of Legal Disputes Including Money or Evaluated with Money by Mediation is arranged in a table, this table is as follows:

From the amount agreed;

The tariffs are changed every year, since the law will come into force as of 2018, the new tariff for 2018 will have to be taken as basis.

J. PAYMENT OF THE MEDATION FEE:

According to the First Part of the Tariff, the two-hour fee is paid from the Treasury if:

The parties were unreachable during the mediation process,

The meeting did not take place because the parties did not attend,

The parties did not reach an agreement after meetings under two hours

If the parties cannot reach an agreement after meetings exceeding two hours, for the parts exceeding two-hours, the fees are equally covered by the parties according to the First Part of the Tariff unless otherwise agreed. The mediation fee paid by the Treasury and covered by the parties is counted towards the litigation expenses. In the case to be filed, the litigation expenses will be collected from the convicted party.

Details on the Costs are included tariff in the Code on Mediation No.6325 and relevant Regulation.

K. MEDIATION IN CASE OF PRIMARY-SUBCONTRACTOR RELATIONS:

For applications to the mediator for re-employment in terms of the primary-subcontractor relations; in order for a settlement, the employers need to attend the meeting together with the same purpose.

L. NECESSARY EXPENSES OF THE MEDIATOR:

The necessary expenses by the mediation bureau according to article 3 of the draft law; (Such as sending the letter of invitation to the meeting, secretariat, renting a place if necessary for negotiations) to be paid by the parties if they come to an agreement at the end of the mediation processes, in the event that an agreement cannot be reached, it will be covered from the allowance set in the budget, to be collected from the future guilty party in the lawsuit.

M. MEDIATION APPLICATIONS SUSPEND THE LITIGAITON PROCEEDINGS:

The time period and statutory limitation is suspended starting from date of application to the mediation bureau until the date of the last minute issued by the mediator.

N. WHO CAN ATTEND THE MEDIATION MEETINGS?

For the mediation meeting;

The parties can attend,

Together with their legal representatives or lawyer.

The employee authorized by the employer with a written document can also represent the employer in the interviews and sign the last minute. For example, the HR manager will be able to attend the meeting, provided that written authorization document is present.

Specialists, and if more than one mediator has been assigned, interns can also attend the meetings. All the attendees have the duty of confidentially and the mediation process is strictly confidential. If not punitive sanctions are enforced.

In cases where there is no provision in this law, the provisions of the law numbered 6325 are applied if possible.

O. REGULATION IN THE ENACTED DRAFT LAW ON MEDIATION IN RE-EMPLOYEMENT LAWSUIT

The employee whose employment contract has been terminated shall apply to a mediator in accordance with the provisions of the Labor Courts Law, with the claim that the no reason was given in the notice of termination or the reason shown is not a valid reason, within 1 month from the issuance of the notice of termination.

A lawsuit can be filed to the labor court within 2 weeks from the date when the last report was drafted if an agreement is not reached after the mediation process.

If the parties agree, the disputes can be taken to a private arbitrator rather than the labor court.

The parties are officially notified if a refusal is made in case of dismissal without prejudice as result of a direct lawsuit without applying to a mediator. An application for a mediator can be made within 2 weeks from the notification of the final rejection decision ex officio.

If the parties agree to employ the employee at the end of the mediation procedures it is obligatory to determine the following points in the agreement.

a) Employment date of the employee,

b) The monetary amount of the wage and other rights according to the 3^rd clause of article 21 of the Labor Law, (wages and rights up to four months for the time that the employee remained unemployed until the mediation process ended.)

c) In the event that the worker is not employed, monetary amount of the non-employment compensation (compensation of at least four months and maximum of eight months) stipulated in clause 2 of article 21 of the Labor Law shall be determined. Or the agreement is deemed unsuccessful and the final report is drafted accordingly. If the worker does not start work on the agreed date, the termination becomes valid and the employer is only responsible for the legal consequences.

Monetary amounts of wages, rights and indemnities recorded in the minutes shall be indicated.

III. CONCLUSION AND ASSESMENTS:

The draft law on Labor Courts did not only amend the former Law on Labor Courts but has also brought new provisions to laws such as the Labor Law, Mediation in Labor Disputes No. 6325, Law on Trade Unions and Collective Bargaining Agreements. However, as mentioned above the draft law has not been published in the Official Gazette and Approved by the Presidency.

Submitted for your information,