As of 01.01.2018, it is a requirement to apply to a mediator before filing a lawsuit in certain receivables and compensation disputes between the employee and the employer. The regulation was made by Article 3 of the Labor Courts Law No. 7036. A labor lawsuit filed without fulfilling the lawsuit requirement is procedurally rejected by the court.
Scope: Which Claims Are Subject to Mandatory Mediation?
The law covers disputes arising from the employment contract or individual/collective labor agreement and involving the employee's claim for receivables or compensation. Major:
- Severance pay
- Notice compensation
- Overtime (overtime) pay
- Annual leave fee
- Salary and wage receivables
- Week holiday, national and religious holiday fees
- Premium, bonus and social aid receivables
- Compensation for maltreatment, compensation for equal treatment
- Reinstatement requests (Labor Law No. 4857, article 20)
- Compensation claims arising from employee-employer insulting each other or damage to work materials
Things Excluded from the Scope of Mandatory Mediation
- Financial and moral compensation cases arising from work accidents or occupational diseases
- Detection, objection and recourse cases regarding work accidents/occupational diseases
- Service determination cases (since they have a public law character)
These cases can be filed directly with the labor court.
Authorized Mediation Office
Application, pursuant to Article 3/5 of Law No. 7036:
- If the worker is going to apply:To the mediation office where the employer resides or where the work is done,
- If the employer will apply:To the mediation office where the worker resides or where the work is done.
it is done. In courthouses that do not have a mediation office, the registry office of the civil court of peace performs this duty. The other party may object to the authority at the first meeting at the latest.
Process Times
The mediator finalizes the application within 3 weeks from the date of appointment. In cases of necessity, the mediator may extend this period by a maximum of 1 week. If no results are obtained within the period, the file is closed.
Sanction for Not Attending the Meeting
A heavy sanction is imposed on the party who does not attend the first meeting without a valid excuse:
- In the case to be filed later, even if he/she is partially or completely justified, he/she will be held responsible for all of the trial expenses (attorney's attorney's fee, fees, expert fee, etc.).
- Attorney's fee shall not be awarded in his favor.
If neither party participates, each bears his own expenses; Only legal attorney fees can be awarded in favor of the prevailing party.
Who Can Participate in a Mediation Meeting?
Parties may attend the meetings in person, through their legal representatives or lawyers. On the employer's side, the employee authorized by the employer with a written document can also participate and sign the final report (Art. 3/18).
Mediation and Statute of Limitations
According to the Additional Article of the Labor Law No. 4857, the statute of limitations for annual leave pay, severance pay, notice pay, bad faith compensation and equal treatment compensation is 5 years. From the date of application to the mediation office to the date of the final report, the statute of limitations stops and the limitation period does not run. The statute of limitations begins to run again on the date the non-agreement report is prepared.
Payment of Mediation Fee
If an agreement is reached, the fee is shared equally by the parties unless otherwise agreed. If an agreement cannot be reached or an agreement is not reached after a meeting lasting less than two hours, the two-hour fee will be covered from the Ministry of Justice budget. For the part exceeding two hours, the fee is shared equally unless otherwise agreed. This fee is considered as litigation expense in the case filed subsequently (Art. 3/14, Art. 3/16).
Suit in Case of Non-Agreement
If the dispute cannot be resolved through mediation, the plaintiff can file a lawsuit in the labor court by attaching the final mediation minutes or a copy of the minutes to the lawsuit petition. If a report is not attached, the court gives a definitive period of one week; If the deadline is not complied with, the petition will be rejected procedurally without being sent to the other party.
Special Regulation in Reinstatement Cases
For reinstatement, it is mandatory to apply to a mediator within 1 month from the date of termination notification. In case of disagreement, a lawsuit will be filed in the labor court within 2 weeks from the date of the last report. In case of agreement, the start date, the monetary amount of wages and other rights, and the amount of compensation for not starting work must be determined; Otherwise, the agreement is deemed not to have been reached (Law No. 4857, Art. 21/5).