01.01.2018 The mandatory mediation activity, which entered into force on 01.01.2018, is the activity of resolving the dispute by the parties to produce the most appropriate solutions to the dispute between them with the contributions of an independent and impartial third party. Article 3/1 of the Labour Courts Law No. 7036 titled “Mediation as a Condition of Litigation ’ makes it compulsory to apply to mediation method in certain types of cases. According to the text of the article, ‘’In lawsuits filed for employee or employer receivables and compensation based on the law, individual or collective labour agreement and for reinstatement, it is a condition of the lawsuit that the mediator has been applied. ‘’
It is necessary to go to mediation in case of severance pay, notice pay, bad faith compensation, compensation for breach of equality, union compensation, mobbing compensation, wages, premiums, bonuses, overtime pay, annual leave pay, week holiday pay, national holiday and general holiday pay and similar labour receivables that may be requested by the employee. Unlike the above-mentioned receivables, the legislator has excluded mediation from being a condition of litigation for the cases listed in the article with the Article 3/3 of the Labour Courts Law No. 7036 : ‘Material or immaterial compensation cases arising from occupational accidents or occupational diseases, and determination, objection and recourse cases related to them are excluded.’ In cases of Article 3/3 of the law, especially in cases related to material and moral compensation arising from occupational accidents or occupational diseases, a lawsuit can be filed directly without applying for mandatory mediation.
FILING A LAWSUIT WITHOUT APPLYING FOR MEDIATION
Article 3/2 of the Labour Courts Law No. 7036 regulates the consequences of filing a lawsuit without mandatory mediation. ‘In the event that it is understood that a lawsuit has been filed without applying to the mediator, the lawsuit shall be dismissed procedurally due to the lack of a cause of action without taking any action.’ In the event that the final report is not attached to the case file despite the application to mediation, “The plaintiff is obliged to attach the original or a copy approved by the mediator of the final report stating that no agreement was reached at the end of the mediation activity to the lawsuit petition. In case of failure to comply with this obligation, the court shall send an invitation to the plaintiff with the warning that the final report must be submitted to the court within a one-week period, otherwise the lawsuit will be dismissed procedurally. If the requirement of the warning is not fulfilled, the lawsuit shall be dismissed procedurally without serving the lawsuit petition to the other party.’ It is essential for the applicants to pay attention to the litigation requirement in the mentioned regulations in order not to lose their rights.
APPLICATION PERIOD
Law No. 7036 regulates how long the application should be made and how long the process should be completed and the effect of the application on the time periods in the lawsuits to be filed for reinstatement. Article 11 reads as follows: ‘The employee, whose employment contract has been terminated, is obliged to apply to the mediator in accordance with the provisions of the Labour Courts Law, with the claim that the reason is not shown in the termination notice or that the reason shown is not a valid reason, within one month from the date of notification of the termination notice, with a request for reinstatement.’ According to this regulation, it is necessary to apply to mediation within 1 month from the date of notification of termination. The legislator has regulated in paragraph 10 of Article 3 of the Law how long the mediator must complete his/her activity. “The mediator finalises the application within three weeks from the date of appointment. This period may be extended by the mediator for a maximum of one week in mandatory cases.’ The legislator has not regulated the mandatory cases in a casuistic manner, and has granted the right to extend the period by one week according to the requirements of the situation. In the event that the parties cannot reach an agreement at the end of the mediation activity, a lawsuit may be filed at the labour court within two weeks from the date of the final report. The two-week period for filing a lawsuit starts on the date of the mediator’s final report. This two-week period is a forfeiture period and failure to file a lawsuit will result in loss of rights. The effect of the application to mandatory mediation on the time limit for filing a lawsuit is regulated in paragraph 17 of Article 3 of the Law. Pursuant to the provision“The statute of limitations shall stop and the forfeiture period shall not run from the date of application to the mediation office until the date of the final report. ’, the statute of limitations shall stop and the forfeiture period shall not run from the date of application for the mediation activity until the date of the final report.
MEDIATION FEE
Law No. 7036 on Labour Courts also regulates the fees related to the mediation activity. No fee is requested from the applicant for the application to the mediation activity. Article 3/13 of the Law reads as follows : ‘In the event that the parties agree at the end of the mediation activity, the mediation fee shall be paid equally by the parties, unless otherwise agreed according to the Second Part of the Mediation Fee Tariff annexed to the Minimum Fee Tariff for Mediation. ’ According to this regulation, if the parties agree and there is no other agreement between the parties to the contrary, it is covered equally by the parties. According to the following regulation, if there is an agreement on reinstatement, the calculation will be made based on the amounts to be received by the employee, and if there is no agreement to the contrary, the parties will pay this amount equally. In the next paragraph of the same article, the situation where the parties cannot agree is regulated. The aforementioned regulation is as follows : ‘In cases where the parties cannot be reached at the end of the mediation activity, the parties cannot be interviewed because the parties do not attend, or the parties cannot agree at the end of the negotiations lasting less than two hours, the two-hour fee amount is paid from the budget of the Ministry of Justice according to the First Part of the Tariff ’. According to the regulation, if the negotiations last less than two hours, the costs are paid from the budget of the Ministry of Justice. In this respect, the mediation system appears to be a cheaper method compared to the application to the court.
Finally, it is necessary to mention the failure of the parties to participate in the mediation activity. Article 3/12 of the Law reads as follows : ‘In the event that the mediation activity is terminated due to the failure of one of the parties to attend the first meeting without a valid excuse, the party who did not attend the meeting shall be stated in the final minutes and this party shall be held responsible for the entire cost of the proceedings even if he/she is partially or fully justified in the case ’. Accordingly, in the event that the mediation activity is terminated due to the failure of one of the parties to attend the first meeting without a valid excuse, the party who did not attend the meeting shall be stated in the final minutes and this party shall be held responsible for the entire cost of the proceedings, even if this party is partially or fully justified in the case. In addition, this regulation shows that the employer who fails to attend the mediation process without a valid excuse will be obliged to pay the full costs of the proceedings and will not be entitled to an attorney’s fee even if the case is concluded in his/her favour. The last sentence of the same paragraph regulates what will happen if the parties do not attend the first meeting. The regulation reads as follows : ‘In the lawsuits to be filed upon the mediation activity terminated due to the failure of both parties to attend the first meeting, the judicial expenses incurred by the parties shall be left on their own ’. Accordingly, if the parties do not attend the first meeting, the mediation activity will be terminated and the judicial expenses incurred by the parties in the lawsuits to be filed thereafter will be left on their own shoulders.