Although mediation is generally a dispute resolution method that the parties can apply voluntarily, it is applied as a mandatory stage before litigation in certain legal disputes. One of these mandatory areas is the reemployment cases within the scope of Labor Law.
1. Mandatory Mediation and Application Period
Pursuant to Labor Law No. 4857 and Labor Courts Law No. 7036, the employee whose employment contract has been terminated must apply to the mediator within one month from the date of notification of the termination notice, claiming that no reason was given in the termination notice or that the reason given was not a valid reason. In the event that a lawsuit is filed directly without this application, the court will reject the lawsuit on the grounds that the condition of the lawsuit has not been fulfilled.
One of the most important issues to be considered here is the beginning of the period. The application period starts from the date of notification of termination to the employee, not from the date of termination by the employer. This period is ex officio and ex officio, and it is of great importance that the parties do not miss this period.
2. Mediation Phase and Conditions of Agreement
If the parties reach an agreement as a result of the mediation negotiations, the following points should be considered for the legal validity of the agreement:
- The date of reinstatement must be clearly determined.
- Compensation for idle time: The amount of wages and other monetary rights to which the employee is entitled for up to a maximum of four months during the period the employee is not working should be specified.
- Compensation for not starting work: The amount of compensation to be paid by the employer if the employee does not start work on the agreed date should be written.
If these elements are not fully included in the minutes of the agreement, the agreement will be deemed legally invalid and the dispute between the parties will continue. In order for the agreement to be valid, the wills of all parties must be compatible. In addition, in cases where there is a principal employer-subcontractor relationship, both employers must participate in the mediation negotiations together and reach an agreement.
If one of the parties refuses to agree, a final settlement cannot be reached on the reemployment claim.
3. Failure to Reach an Agreement at the Mediation Stage
If the parties cannot reach an agreement as a result of the mediation negotiations, the mediator prepares the final minutes of the dispute. This report must be submitted to the court in order to file a reemployment lawsuit. If no agreement is reached at the mediation stage, the reemployment lawsuit must be filed within two weeks from the date of the final report. If the lawsuit is not filed within this period, the employee’s right to request reinstatement will be terminated.
If a reinstatement lawsuit is filed directly to the court without applying to the mediator, the court will dismiss the lawsuit procedurally without any examination. However, if the final report is not attached to the lawsuit petition despite the mediation application, the court gives the plaintiff a one-week deadline. If the final report is not submitted to the file within this period, the case will again be dismissed procedurally.
Conclusion
Mediation is accepted as a condition of litigation in reemployment cases, and it is important that employees and employers manage this process correctly and carefully. Failure to observe the deadlines for application and filing a lawsuit may lead to loss of rights, and legal deficiencies at the agreement stage may cause the dispute to continue.
