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Mediation in Labor Courts

The ‘voluntary mediation’ has entered into our legal system with the Code of Mediation

in Legal Disputes numbered 6325 (in Turkish “Hukuk Uyuşmazlıklarında Arabuluculuk Kanunu”). However, “mediation as a pre-condition before filing a lawsuit” will take place for the first time in our legal system before Labor Courts, following the announcement of the Draft Law on Labor Courts (in Turkish, “İş Mahkemeleri Kanun Tasarısı”, the “Draft Law”) in the Official Gazette, which has already been accepted by the Grand National Assembly of Turkey on 12 October 2017. The Article 3 of the Draft Law governs mediation as a pre-condition in two types of cases ;

  1. Cases of indemnity and the claims of Employees or employers, based on individual or collective labor contracts
  2. Re-employment lawsuits (in Turkish “İşe İade Davaları”)

Disputes relating to material and moral indemnity claims arising from an occupational accident or an industrial disease and recourse actions regarding the same are excluded from the scope of the mediation.

In other words, bearing the above-mentioned exemption in mind, applying to a mediator will become mandatory for the disputes between employees and employers before commencing a lawsuit. This means that when the Draft Law comes into force, not complying with the obligation of applying to mediation shall result with the procedural denial of the lawsuit since the pre-condition of filing a lawsuit has not been accomplished.

As per the Draft Law, the plaintiff bringing a lawsuit under the scope of the Draft Law has to present the original of final minute/ report of mediation (or the copy of the same approved by the mediator) together with the lawsuit petition. Otherwise, the court shall grant the plaintiff one-week definite term (in Turkish “Kesin Süre”) to submit the final minute/ report to the file and if not submitted, shall dismiss the case since the pre- condition of filing a lawsuit has not been accomplished.

As per the Draft Law, following completion of the mediation procedure, if the parties come to an agreement on the issue subject to mediation, the mediation fee shall be paid equally by the parties unless otherwise agreed.

During the mediation procedure, if (i) the mediator cannot contact any of the parties; (ii)

the negotiations cannot take place since the parties do not attend to the negotiations; (iii) the parties do not come to a mutual understanding as a result of the negotiations that take less than two hours, the mediation fee shall be covered by the Treasury. On the other hand, if the negotiations take more than two hours, even in case of disagreement, the mediation fee shall be paid equally by the parties unless otherwise agreed.

Besides the mandatory mediation procedure, another important provision brought by the Draft Law is regarding the prescription period (in Turkish “Zamanaşımı Süresi”) to be applied to the disputes arising from annual paid leave, severance pay, notice pay, compensation of bad faith and equal treatment obligation of the employer. In the Draft Law, the prescription period has been determined as 5 (five) years for these disputes instead of 10 (ten) years, which is currently in force.

Our Law Firm remains at your disposal for any further clarifications you may

require.

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