THE NEW LABOR COURTS LAW NR.7036
The new Labor Courts Law numbered 7036 (“Law”), which was published in the Official Gazette on 25th October 2017, adopted, mandatory mediation as cause of action.
Mandatory Mediation as Cause of Action
As of 1st January 2018, the parties (both employees and employers) shall be obliged to apply to mandatory mediation before they file a lawsuit before the Turkish Labor Courts with regards to employee or employer’s actions of debt, compensation cases and reemployment lawsuits arising from the law, employment agreements and collective bargaining agreements.
The lawsuits, which are filed at the Labor Courts prior applying to the mandatory mediation will be rejected by the Courts due to the absence of cause of action.
However, mediation shall not be deemed as cause of action in certain cases such as; material and immaterial compensation claims arising from occupational accidents, occupational diseases and recourse actions in relation to these lawsuits.
Delivery of the Dispute to the Mediator and First Session
The mediator, using the contact information given by the Mediation Bureau or identified by the Mediator himself/herself, shall inform the parties about the assignment and invite the parties for the First Session.
There are certain sanctions for the party, who causes the discharge of the Mediation by not attending the first session without any valid excuse. The party, who did not attend the first session and caused the discharge of the mediation is specified at the minutes of the session and is held responsible of all litigation expenses even if that party is partly or completely found right in the case before the court. Besides, counter party counsel fee shall not be ruled in favor of that party.
In cases where both parties failed to attend the first session of the mandatory mediation, all litigation expenses are left on the parties themselves in the labour courts.
Parties can attend the mandatory mediation sessions personally or through their legal representatives or counsels. The employer can be represented by the employee who is officially authorized by the employer via written proxy.
Mediation process shall be completed within three weeks period. The mediator can extend the proceedings maximum one week more, under occurrence of certain circumstances.
If the parties reach an agreement, at the end of the mediation, the mediator’s fee, which is determined with the Minimum Mediator Fee Tariff is paid equally by the parties. In this case, the fee cannot be lower than two hours service charge determined at the Tariff. As of the year 2018, the minimum mediator fee for one-hour service is determined as 140 Turkish Liras, so the mediator’s fee cannot be lower than 280 Turkish Liras.
In the cases where, the parties could not have been reached, or the session could not have been held due to the absence of the parties or at the end of the sessions which lasted less than two hours and the parties could not reach an agreement; the two hours service fee shall be paid from the budget of Ministry of Justice. However, in the cases where the session lasted over two hours and the parties could not reach an agreement, the mediation fee for the exceeding hours shall be paid equally by the parties unless otherwise agreed. The fees paid from the budget of Ministry of Justice or by the parties are deemed as litigation expenses.
These provisions of the law entered into force on 01.01.2018.