Mediation in Disputes Requesting Reinstatement

Mediation is applied only in resolving private law disputes, including those with foreign elements, arising from works or transactions over which the parties can freely dispose.

In the words of the law, Mediation: Brings the parties together to discuss and negotiate by applying systematic techniques, establishes a communication process between them to ensure that they understand each other and thus produce their own solutions, can propose a solution if it turns out that the parties cannot produce a solution, and has specialized training. It is a dispute resolution method carried out voluntarily and with the participation of a neutral and independent third party.

Mediation has some basic principles, including voluntariness, equality and confidentiality. Mediation is a dispute resolution method that the parties shape with their will and participate with their own consent. Parties have equal rights throughout the mediation process. The most different feature of mediation from the classical trial method is the principle of confidentiality. Parties participating in the mediation process, the mediator and those involved in the process must comply with the principle of confidentiality unless otherwise agreed.

As can be seen, while mediation is an optional process in every sense, with the entry into force of Law No. 7036 on 01.01.2018, resorting to mediation in labor disputes has become mandatory. Applying for mediation is a prerequisite before filing a lawsuit. In other words, going to mediation before filing a lawsuit has become a condition of litigation. Disputes arising from work accidents and occupational diseases are excluded from this regulation.

According to Article 3 of the Labor Courts Law No. 7036;

• In cases filed with the demand for employee or employer receivables and compensation and reinstatement based on the law, individual or collective labor agreement, applying to a mediator is a condition of the case.
• The plaintiff must attach to the petition the original of the last report stating that no agreement was reached at the end of the mediation activity or a copy approved by the mediator. If this obligation is not complied with, the court sends an invitation to the plaintiff, warning that the final report must be submitted to the court within a certain period of one week, otherwise the case will be rejected due to procedural reasons. If the requirements of the warning are not fulfilled, it is decided to reject the case due to procedural reasons without notifying the petition to the other party. If it is understood that a lawsuit has been filed without applying to a mediator, it is decided to reject the case due to the lack of a lawsuit requirement without taking any action.

The same article regulates that journalists within the scope of the Press Labor Law and seafarers within the scope of the Maritime Labor Law will also be considered workers within the scope of compulsory mediation.

The law clearly stipulates that mediation as a condition of litigation will not be applied to material and moral compensation arising from work accidents or occupational diseases, as well as determination, objection and recourse cases related to these.

Litigation Requirement Mediation in Reinstatement Disputes

According to Article 18 of the Labor Law No. 4857, the employer who terminates the indefinite-term employment contract of a worker with at least six months of seniority in workplaces employing thirty or more workers must rely on a valid reason arising from the competence or behavior of the worker or the requirements of the enterprise, workplace or job. . (There is no seniority requirement for workers working in underground works.)

As stated in the law, if the termination of the employment contract is not based on a valid reason, the employee can apply for mediation by claiming the invalidity of the termination, and if there is no agreement, he can file a reinstatement lawsuit.

Application for reinstatement is important in terms of deadlines. If the employee whose employment contract is terminated claims that no reason is given in the termination notice or that the reason given is not a valid reason, he/she must apply for mediation to request reinstatement within one month from the date of notification of termination. The point to be noted is that the contract starts from the date of termination notification, not from the date of termination.

If the mediation process results in a disagreement between the parties, a reinstatement case must be filed within two weeks from the date of the last report.

Since resorting to mediation in disputes demanding reinstatement is a condition of litigation (in other words, it is mandatory), if a lawsuit is filed directly without resorting to mediation, the judge will reject the lawsuit filed by the worker due to the lack of a lawsuit condition. In case the case is rejected in this way, it has been regulated that the plaintiff can apply to the mediator within two weeks from the notification of the final rejection decision, in order to prevent the plaintiff party from losing his rights.

Since these periods are restrictive periods, if a mediator is not consulted or a lawsuit is not filed within the periods specified in the law, the employee will not have the opportunity to file a lawsuit later. The judge will take into account the limitation periods ex officio.

What should the mediator do if mediation is resorted to after the limitation periods have passed? Since mediation is not a judicial activity, the mediator does not have the opportunity to examine whether the application is on time or not. The real problem is how the mediator will proceed if the other party or parties declare that the application is not within the deadline. Mediation is not a trial activity, and the mediator is not a decision maker. For this reason, the mediator does not evaluate the objections or statements of the parties. It only records the issues on which the parties disagree in the final minutes.

Reinstatement disputes differ from other disputes in terms of the parties participating in the mediation process. İş Mah.Kan.3. According to paragraph 15 of the article, in case of the existence of the main employer-subemployer relationship, when a mediator is applied for reinstatement, the employers are required to participate in the mediation negotiations together and their wills are in harmony in order to realize the agreement.

İş Mah.Kan.3. Paragraph 15 of the article causes confusion and some difficulties in practice.

What happens if only one of the employers participates in the mediation negotiations requesting reinstatement (the main employer and the subcontractor do not participate together) and the process ends in disagreement?

Since the legislator requires the employers to participate together and their wills to be compatible with each other in the case of “agreement”, I believe that the mediator will end the process as a non-agreement.

However, some opinions are that if only one party participates, mediation cannot be carried out even in case of disagreement.

When the mediator is appointed or the application is received, the mediator must start the process within the information specified by the applicant in the application form. The mediator must inform the applicant (worker). Since reinstatement disputes vary, the importance of including the parties in the process should be emphasized in addition to general information. Even if it is not stated in the application form, if the applicant worker has a request to add a party in the light of this information, the mediator must also include the party shown later in the process. Of course, it should not be ignored that the mediation process must be terminated by the mediator within 4 weeks in total.

The mediation process, as a result of the negotiations; If the meeting ends due to the parties not attending the meeting and reaching an agreement, the parties not attending, or not being able to reach the parties, the mediator ends the process by preparing a final report.

Agreement in the Mediation Process Requesting Reinstatement

If the mediation process with a request for reinstatement results in an agreement, the validity of the agreement is subject to certain conditions in the law. In this respect, it has a different regulation than other employer-employee disputes.

Labor Law Article 21 (Additional paragraph: 12/10/2017-7036/12 art.) If the parties agree on the reinstatement of the worker at the end of the mediation activity;

a) Start date,

b) The monetary amount of wages and other rights regulated in the third paragraph,

c) In case the worker is not reinstated, they are required to determine the monetary amount of the compensation regulated in the second paragraph.

Otherwise, it is deemed that no agreement has been reached and the final minutes are prepared accordingly. If the employee does not start work on the agreed date, the termination becomes valid and the employer is only responsible for its legal consequences.

If the parties have agreed on the employee starting to work at the end of the mediation negotiations, the start date must be clearly stated in the agreement document.

Third paragraph: “The worker’s wages and other rights shall be paid for the period in which he is not employed until the decision is finalized, up to a maximum of four months.” It is in the form. This article is designed specifically for the trial. During the mediation process, it is not clear whether the idle time will be calculated until the agreement date or the start of work, or from another perspective, whether the periods specified in the law will be strictly adhered to. It would be fair to use the employee’s starting date as a basis. Of course, the principle of voluntariness, which forms the spirit of mediation, should not be forgotten. In mediation, it is essential for the parties to find the most suitable solution for themselves by considering their rights and interests together.

As a result of the negotiations, reaching an agreement on the employee starting work is not sufficient for the agreement to be valid. At the same time, the agreement document must clearly state the compensation amount to be paid if the employer does not reinstate the employee.

The compensation amount to be determined by the court as a result of the reinstatement case is regulated in Labor Law Article 21/1. The said article states: “If the employer does not employ the worker within one month upon his application, he shall be obliged to pay compensation to the worker at least four months’ and at most eight months’ wages.” It is in the form. As we just mentioned, these rules are for court proceedings. Will the rule of minimum four and maximum eight months’ salary specified in the law be applied during the mediation process? If the parties, of their own free will, have determined the compensation for not starting work for example three months, will the agreement be invalid? There is no clarity on this issue, and different opinions are put forward. My personal opinion; Since mediation is based on the interests and common will of the parties rather than justification, the parties can produce different solutions.

It should not be forgotten that during mediation negotiations, the parties conduct risk analysis. With the reality test, both the risks in the trial, the financial risks, and the whole of the relationships are evaluated. For example, if the Supreme Court Chambers have different opinions on whether the termination is valid or not, and this shows that there is a 50% chance of winning the case for both the plaintiff and the defendant, compressing the amount of compensation for not starting work into the legal article does not seem to be in accordance with the basic principles of mediation and the interests of the parties.

In reinstatement disputes, the parties may also agree not to reinstate the worker. In this case, two possibilities may arise;

In the first possibility, if the parties agree that the termination of the employment contract is not based on a valid reason, the employee’s non-recruitment, idle time pay and non-employment compensation may be subject to the agreement document. At the same time, they may reach an agreement regarding other receivables based on termination (severance pay, notice pay, annual leave, overtime pay, UGBT, etc.) during the mediation negotiations.

In the second possibility, the parties may agree that the termination is valid. In this case, it will be possible to give up the demands for reinstatement and negotiate and reach an agreement on other receivables based on termination.

Mediation fees in reinstatement disputes are regulated differently than in other disputes. More precisely, the amounts to be taken as basis when calculating the mediation fee are clearly regulated.

İş MK. According to paragraph 13 of Article 3, “In case the parties reach an agreement at the end of the mediation activity, the mediation fee shall be covered equally by the parties unless otherwise agreed in accordance with the Second Part of the Mediation Fee Tariff annexed to the Mediation Minimum Fee Tariff. In this case, the fee cannot be less than the two-hour fee determined in the First Part of the Tariff.” “In case the parties agree during the negotiations regarding the reinstatement request, in determining the fee to be paid to the mediator, the sum of the compensation to be paid to the worker in case he is not reinstated and the wage and other rights to be paid for the period of non-employment shall be deemed as the amount agreed upon in accordance with the Second Part of the Tariff.”

If the parties agree on the reinstatement of the employee at the end of the mediation negotiations, the mediation fee will be calculated based on the sum of the idle time fee and compensation for not starting work that they agreed upon. In addition to these, if an agreement is reached on other rights, the total of the other rights agreed upon will also be included in the calculation.

If the parties cannot reach an agreement as a result of the negotiations, a “final non-agreement report” is prepared. The applicant worker must add the final report to the case file when filing his case. The reinstatement case must be filed “within two weeks from the date of the last report.” Otherwise, the applicant party loses its right to file a lawsuit.

If the parties agree, an agreement document is prepared. The agreement document has the nature of a decision. The parties may obtain an enforceability annotation on the agreement document. The annotation of enforceability is obtained from the Civil Court of Peace and is subject to non-contentious jurisdiction. If the agreement document is signed together with the parties and their lawyers, there is no need to obtain an enforceability annotation. If an agreement is reached at the end of the mediation activity, the parties cannot file a lawsuit regarding the agreed issues.