Another particularly important issue regarding the termination of the employment contract is the obligation to apply to a mediator in Turkey. The regulations on applying to a mediator in labour disputes, which is essentially a civil dispute, are included in the Labour Courts Law No. 7036. Apart from this, the general regulations on mediation in the context of civil disputes are included in the Law on Mediation in Civil Disputes No. 6325 and the Regulation on the Law on Mediation in Civil Disputes issued according to this law and published in the Official Gazette dated 02.06.2018 and numbered 30439.
According to Article 3 of the aforementioned Labour Courts Law, application to a mediator in Turkey is accepted as a condition of litigation in lawsuits filed for employee or employer receivables and compensation based on the law, individual or collective labour agreement and for reinstatement. Again, according to the law, the journalist regulated in the Law No. 5953 on the Regulation of Relations between Employees and Employers in the Press Profession and the seaman regulated in the Maritime Labour Law No. 854 are also considered as employees within the context of the requirement to apply to mediation.
Accordingly, the plaintiff is obliged to attach the original or a copy approved by the mediator in Turkey 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 will send an invitation to the plaintiff with the warning that the final report must be submitted to the court within one week, otherwise the lawsuit will be rejected procedurally, and if the requirement of the warning is not fulfilled, the lawsuit will be rejected procedurally without serving the lawsuit petition to the other party. If it is understood that the lawsuit has been filed without applying for mediation, the lawsuit will be dismissed procedurally due to the absence of a condition for the lawsuit without any action.
The Law does not consider the application to mediation as a condition for filing a lawsuit for pecuniary and non-pecuniary damages arising from occupational accidents or occupational diseases and the related determination, objection and recourse lawsuits.
The application to the mediator shall be made to the mediation office at the place of residence of the counterparty, or if there is more than one counterparty, to the mediation office at the place of residence of one of them or at the place where the work is carried out, or to the assigned directorate of registry offices in places where there is no mediation office. In general, it is essential that the mediator is determined by the bureau from the list notified to the commission chairs, but it is also possible for the parties to agree on any mediator on the list. Additionally, the applicant party is required to provide the mediation office with all kinds of contact information of himself/herself and the other party, if available. Afterwards, the mediator will inform the parties about the assignment and invite them to the first meeting based on this contact information, if necessary, by conducting his own research, using all means of communication, and document the procedures regarding the information and invitation.
In Turkey, after the invitation from the mediator, it is possible for the other party to object to the authority of the mediation office at the first meeting at the latest, by submitting documents regarding the place of residence and the place where the work is carried out. In this case, the mediator shall immediately deliver the file to the office to be sent to the relevant civil court of peace, the court shall decide on the authorised office at the end of the examination to be made on the file without any fee and return the file to the office. Subsequently, the court decision shall be notified to the parties by the office in accordance with the provisions of the Notification Law No. 7201. In case the objection of authorization is rejected, the same mediator will be re-appointed and the mediation periods will start from the new appointment date. In case the objection of jurisdiction is accepted, the parties may apply to the authorized office within one week following the notification of the decision. In this case, the date of application to the unauthorized office shall be accepted as the date of application to the authorized office and the authorized office shall appoint a mediator.
It is essential that 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 mediator in Turkey shall terminate the mediation activity in the event that the parties cannot be reached, the meeting cannot be held because the parties do not attend, or an agreement is reached or not reached as a result of the negotiations, and shall immediately notify the mediation office by issuing the final report.
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 will be stated in the final minutes and this party will be held responsible for the entire cost of the proceedings even if it is partially or fully justified in the case. Additionally, no attorney fee will be awarded in favour of this party. In the lawsuits to be filed upon the termination of the mediation activity due to the failure of both parties to attend the first meeting, the trial expenses incurred by the parties will be left on their own.
In the event that the parties agree at the end of the mediation activity, the mediation fee must be paid equally by the parties, unless otherwise agreed according to the Second Part of the Mediation Fee Tariff annexed to the Mediation Minimum Fee Tariff. In this case, the fee should not be less than the two-hour fee specified in the First Part of the Tariff. In the event that the parties agree in the negotiations with the request for reinstatement, in determining the fee to be paid to the mediator, the sum of the amount of compensation to be paid to the employee in case the employee is not reinstated and the sum of the wages and other rights to be paid for the period of non-employment shall be accepted as the agreed amount in accordance with the Second Part of the Tariff.
In cases where the parties cannot be reached at the end of the mediation activity, the parties cannot be interviewed because they do not attend, or the parties cannot agree at the end of the negotiations lasting less than two hours, the two-hour fee amount must be paid from the budget of the Ministry of Justice according to the First Part of the Tariff. In the event that the parties cannot agree at the end of the negotiations lasting more than two hours, the fee for the part exceeding two hours shall be paid equally by the parties according to the First Part of the Tariff, unless otherwise agreed. The mediation fee paid from the budget of the Ministry of Justice and covered by the parties is counted among the costs of the proceedings.
In the presence of a principal employer-subcontractor relationship, when applying to the mediator in Turkey with a request for reinstatement, in order for an agreement to be reached, it is required that the employers participate in the mediation negotiations together and that their wills are compatible with each other.
During the period from the application to the mediation office until the date of the final report is issued, the statute of limitations will stop and the forfeiture period will not run.
It is possible for the parties to attend the mediation meetings in person, through their legal representatives or lawyers. It is even possible for an employee authorized by the employer with a written document to represent the employer in the negotiations and sign the final minutes.
