Changes Introduced by the Law on Employment Courts numbered 7036

Law on Employment Courts (“Law”) numbered 7036, which is published on the Official Gazette dated October 25, 2017 and numbered 30221, entered into force except some specific articles and repealed the Law on Employment Courts numbered 5521 (“Previous Law”). Considering the purpose, it is understood that the Law aims to finalize the employment disputes in a shorter time and minimise the legal lawsuits to be held by the courts. The primary changes introduced by the Law are summarized below.

1. Mediation is Introduced to Our Law for the First Time

With the Law, “mediation as a cause action” is introduced to our law first time; And, before filing a case related to disputes concerning the Law before the courts, application to mediation become necessary.

 

In cases filed due to employee-employer receivable, compensation or re-employment basing on the law or individual or collective labor agreement (“Agreement”), “mediation as cause of an action” will be a must.

In order to apply to the mediator, the claim or compensation claim will have to be due to the work relationship.

With the new arrangement, employee will apply to the mediator before opening the case for claims like compensation, seniority, notice, overtime and annual leave; employer for claims like receivable and compensation.

Under the Law, mediation will also be a pre-condition regarding the compensation cases on defamation and slander arisen from employment relationship and damages of the workplace and/or the goods placed in the workplace.

Plaintiff will need to attach the original or the copy certified by the mediator of final mediation minute which proves no settlement achieved from the mediation to their lawsuit petition. In case the plaintiff does not attach such document, one week duration will provided to the plaintiff to submit the document and the lawsuit will be rejected if they cannot provide it in time.

In the event that a lawsuit is filed without applying to the mediator, the case will be rejected by the court due to the absence of a case requirement without any warning.

• Mediation will not be applied to occupational workplace accidents and occupational diseases    

The mediation institution as cause of action shall not be applied in cases of material and non-pecuniary damages arising from work accidents or occupational diseases and related recourse cases.

• Mediation Offices

Mediators registered to the registry by the Mediation Department will be listed by the first instance court justice commissions according to their fields of expertise and the judicial jurisdiction where they want to work and they will be notified to the commission presidencies.

The Presidency of the Commission will send the lists to the mediation offices in their jurisdiction, or to the Registry of Civil Court of Peace to be appointed where the mediation offices do not exist.

The court will finalize the decision of the authorized office and send the file to the office as a result of the examinations carried out without any fee. In case of acceptance of the authority objection, it is possible to apply to the authorized office within a week from the notification of the decision. The mediator will conclude the application within 3 weeks from the date of the assignment. This period may be extended by the mediator for a maximum period of 1 (one) week.

• Mediation Fees

If one of the parties does not attend to the first mediation meeting without submitting any excuse document and if the mediation concludes, the party not attending to the meeting will be charged for mediation expenses even though they get partially of wholly affirmative result.

And, if the both parties do not attend to the first mediation meeting without submitting any excuse document, both parties will bear their own expenses.

In case amicable settlement is reached as a result of the mediation, mediation payments will be shared by the parties on equal basis.

 

2. Duty Fields of Labor Courts

Labor courts shall hear the suits and cases related to legal disputes of any nature arising from the contract or the Law between the Employer/Employer’s Deputies and journalists, ship’s company, and the employees who are subject to the Law of the Turkish Code of Obligations; the disputes arising our of the labor and social security legislation (“legislation”) in which SSI or Turkish Employment Agency is a party –except for the objections to administrative monertary penalties and stated disputes – and the disputes about which other laws require that labor courts are in charge.

In the legal cases to be opened in labor courts, the competent court shall be the court of the defendant natural or legal person on the date of the filing of the case and the place or court where the work or the operation is made.

If there are more than one defendant, the court in the settlement place of each is authorized. In the work-related compensation cases, the courts located where the occupational accident or damage occurs and the court located in the settlement of the damaged worker will be authorized.

The employee, whose employment contract is terminated, can apply to the mediator within one month with the claim of re-employment if he thinks that there is no valid reason or no reason whatsoever putforward; and if there is no settlement achieved, he/she is entitled to open up a case in labor courts.

With the new law, provided that it is arising from employment contract, regardless of which law it is subject to, the period of limitation will be 5 years for the annual leave fee, severance pay, compensation arising from the termination of the employment contract without complying with the notification requirement (notice pay), for compensation for bad faith damages and compensation for termination of employment contract due to violation of equal treatment.

3. Time for Appeal against Labor Court Decrees is Changed

Under the article 8 of the Previous Law, time period for appeal was 8 (eight) days starting from the announcement or delivery of the court decision. With the Law, articles on legal remedies of the Code on Civil Procedure numbered 6100 (“Code”) will be applied to employment court decisions. With this change, time for appeal will start with the delivery of the court decision and the duration for submission of appeal petition is 2 (two) weeks as of the delivery date of the court decision under articles 354 and 361 of the Code. The pronouncement will not be taken into consideration for initiating the time, this time for appeal will begin with the notification.

This provision regulating the legal remedies is entered into force on October 25, 2017, the related Official Gazette’s publication date. It should be remembered that under temporary article 1 regulating the transit clause, the decisions taken before October 25, 2017 are subject to Previous Law.

4. The Cases of Re-employment Cannot be Appealed

In accordance with Article 20 of the law, the legal cased opened with the claim of invalidity of the termination and re-employment can only be appealed in regional courts of justice; regional court decisions cannot be appealed and the decision of the regional courts of justice will be final.

In the first instance courts, the regulations in force on the date of the decision will be applied for the decisions made before the law enters into force. In other words, the decisions given by the first instance courts before 25.10.2017 can be appealed under the former regulation.

 

 

Yazar : Gulel Hukuk