Introduction

Turkey has approximately 10 million registered employees and a robust, labour-friendly body of law. Against this backdrop, employment relationships frequently end with a lawsuit against the former employer. This results in large caseloads for the labour courts. Employee representatives, academics, legal professionals, sociologists and politicians have discussed many alternatives to litigation in order to minimise the volume of these disputes and speed up the dispute resolution process. Recent discussions have centred on three potential solutions.

Mandatory mediation

The principle of mandatory mediation was introduced in 2012 for several categories of civil law dispute. The legislative and judicial authorities are trying to encourage the use of mediation in employment disputes due to the large burden on the labour courts. According to the planned amendments, employees will be required to apply for official mediation before initiating a lawsuit for claims involving:

  • reinstatement;
  • employee receivables based on law; and
  • individual or collective employment agreements.

If a lawsuit is initiated without completion of the mandatory mediation phase, it will be procedurally dismissed. A maximum four-month timeframe is planned for completion of mediation and the initial two-hour mediation fee will be covered by the state. Further, parties will incur administrative fines for unexcused absences during the mediation process, in order to ensure attendance. Having a mandatory mediation process prior to litigation may encourage parties to find an amicable win-win solution. However, if the parties cannot resolve their dispute at the end of the mediation process, they will still be entitled to proceed to the regular labour courts. It is unclear what impact mandatory mediation could have on litigants and courts if parties opt to pursue litigation after a failed mediation.

Appellate courts

The establishment of more appellate courts may also speed up the litigation process. Provisions to establish new appellate courts in each city and region have been on the statute books since 2004, but due to infrastructural and efficiency issues at the judiciary, it has taken over a decade to establish them. For this reason, appeals are still being heard by the Ankara Court of Appeals, which is not equipped to handle such large volumes of appeal petitions. Once the new civil and regional appellate courts commence operations in July 2016, they will become the final appellate body for disputes of up to TRY25,000, as well as disputes covered under the Law on Unions and Collective Bargaining Agreements (6356). The monetary values of many employment disputes fall within this limit, so the new appellate courts should speed up their resolution.

Reinstatement lawsuits

Reinstatement lawsuits have become the most common suits filed by employees over the last decade. This legal remedy was introduced in 2003 by the Labour Law (4857). While the legislative intent was to give employees and employers a second chance to work together, in practice neither party generally wants to give the other a second chance. Further, the reinstatement application and rejection process takes a long time and employees often initiate reinstatement lawsuits as leverage to obtain additional compensation from their former employers, rather than to be reinstated. For this reason, there is talk of amending the legislation to give employees the option at the beginning of a lawsuit to claim compensation directly for not being reinstated, rather than forcing both parties to attempt a second chance scheme that neither wants.

Comment

All three potential solutions provide an optimistic forecast for employment-related disputes if they can be effectively implemented. However, realistically, the intentions and motives of the parties will determine the success of these new methods. Additional problems remain to be addressed, such as:

  • sub-employer relations;
  • minimum wage levels;
  • regulation of the informal economy;
  • unregistered employee benefits; and
  • inadequate workplace safety measures.

These issues will undoubtedly require even more creative solutions going forward.

For further information on this topic please contact Tolga Danisman or Bige Göksel at Hergüner Bilgen Özeke by telephone (+90 212 310 1800) or email (tdanisman@herguner.av.tr orbgoksel@herguner.av.tr). The Hergüner Bilgen Özeke website can be accessed at www.herguner.av.tr.

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