Newly Enacted Labour Courts Law
The Labour Courts Law («Law») has been published on the Official Gazette dated 25.10.2017. The Law brings significant changes by,
(i) adapting a mandatory mediation principle as a pre-condition for applying to court in significant labour litigation, such as reinstatement, employment receivables and compensation claims,
(ii) adapting the requirement to apply to the Social Security Institution before going to the court for disputes arising out of social security legislation,
(iii) amending the statute of limitations period to 5 years for claims relating to the severance pay, notice pay, and annual leave allowance, and compensation for bad faith damages and/or discrimination,
(iv) introducing final resolution of certain disputes (e.g. reinstatement) at the Regional Court of Appeal rather than the Supreme Court.
01 MANDATORY MEDIATION
MANDATORY MEDIATION UNDER EMPLOYMENT LAW
- Following the entry into force of the Code of Mediation for Legal Disputes in 2013, it has been noted that 72% of the overall disputes that has been taken to mediation were related to employment law and almost all of such has resulted in settlement between the employees and employers.
- Thus, to release the work load of the Labour Courts and to expedite the trial process, the Law regulates a mandatory mediation process for employment law disputes arising out of the claims relating to the receivables of the employees and reinstatement, before any action taken before the court.
- Pursuant to the mandatory mediation provisions introduced in the Law, taking the dispute to a mediator consitutes a precondition for filing a lawsuit at the court arising out of the claims relating to reinstatement as well as to employment receivables and compensation. Therefore, only when a dispute cannot be settled before a mediator, then it can be taken before the court. The minutes (either the authenticated copy or a copy signed by the mediator) stating the parties could not reach a settlement shall be enclosed to the lawsuit petition. In case the parties can not achieve a result through mediation, they may bring a lawsuit before the labour court.
- In case of an existence of a subcontractor and a co-employment relationship, both of the employers (e.g. the principal employer and the subcontractor) shall participate to the mediation relating to the reinstatement claim and be in an agreement for the settlement.
- In the event that the parties reach a settlement at the end of the mediation process, the parties may not bring a lawsuit on the agreed matters.
THE MANDATORY MEDIATION PROCESS
The application is made either at,
- The mediation bureau in the place of residence of the opposing party (if there are more than one opposing parties the place of residence of any of those parties) or in the workplace of the employee
- The secretary of the civil court of peace that has been assigned by the judiciary commission of civil courts of first instance, where a mediation bureau has not been established.
SELECTION OF THE MEDIATOR
- The mediator is selected by the parties, among the mediators listed by the Head of Department of Mediation.
-In the event of disagreement between the parties on the selection of the mediator, the assignment is made by the mediation bureau.
DUTIES OF THE MEDIATOR
02 STATUTE OF LIMITATION
PERIOD OF LIMITATION
The statute of limitation for the claims on the following matters arising out of an employment agreement have been designated to be five years:
a) Severance pay;
b) Compensation arising from the termination of the employment agreement due to the failure to comply with the obligation of notification;
c) Compensation for bad faith damages;
d) Compensation arising from termination of the employment agreement due to the failure to comply with the principle of equal treatment.
REMINDER: Prior to this transition; the 10-year period of limitations has been applied under the Article 125 of the Turkish Obligation Code to the above-mentioned compensations.
03 REMOVAL OF APELLATE PROCEDURE
FINAL DECISION OF THE COURT OF APPEAL
The Law designates that the following matters may not be brought to the Supreme Court and hence, shall conclusively be finalized at the Regional Court of Appeal:
- Decisions rendered on reinstatement claims
- Decisions taken in the cases regarding the cancellation of the disciplinary penalties given to the employee in accordance with the collective labour agreement or workplace regulations
- Decisions taken according to the Law on Trade Unions and Collective Agreements in the event of (i) termination of the employment agreement of the union representative (ii) disputes concerning whether the workplace for which the collective agreement to be made has the required qualifications, (iii) disputes arising from the interpretation of an existing collective agreement, (iv) determination whether a strike or lock-out is lawful or not
Decisions taken in (i) the cases on the recall of the union branch, trade union or confederation management board, (ii) the cases filed by a public officer whose application for membership of union is not accepted according to the Law on Public Officers' Unions and Collective Agreements