Türkiye: Constitutional Court Annulled the Clause on Joint Mediation in Cases Involving a Primary Employer–Subcontractor Relationship

Authors: Ipek Unlu Tik and A. Kaan Baser

The Constitutional Court has annulled the rule requiring employees to apply to mediation jointly against both the primary and subcontractor employers concerning reinstatement claims, which compelled employees to identify and include the primary employer before initiating the process; on the grounds that it was unconstitutional.

According to Turkish Labour Law, an employee whose employment contract has been terminated must apply for mediation within one month following receipt of the termination notice to request reinstatement. This application is a procedural prerequisite for filing a lawsuit before the labour court.

Pursuant to Article 3(15) (“Rule”) of the Labor Courts Law numbered 7036, when a primary–subcontractor relationship existed, the employee was required to initiate mediation proceedings against both the primary and the subcontractor employers jointly. The Rule had been initially introduced to prevent potential disputes regarding standing in cases where the primary–subcontractor relationship was found to be invalid or colourable, and to ensure that both employers participated in the mediation process together.

However, the Constitutional Court emphasized that the main purpose of the mediation process in reinstatement claims is to facilitate reconciliation between the parties, but that the joint application requirement instead complicated the process and rendered it ineffective.

Upon review, the Constitutional Court has concluded that the Rule placed an excessive burden on employees and disproportionately restricted their right to a fair trial regulated under Article 36 of the Constitution. The Constitutional Court reasoned that, in most cases, employees may not be able to identify or determine the scope of a primary–subcontractor relationship before initiating the mediation process. Consequently, requiring them to include both employers in the application made it unduly difficult for employees to exercise their legal rights; and thus annulled the requirement for joint mediation in cases involving a primary employer-subcontractor relationship.

Key Points

• Employees must apply for mediation within one month following their dismissal, in order to be able to request their reinstatement.
• Previously, employees of subcontractors were required to apply to mediation jointly against primary and subcontractor employers concerning their reinstatement.
• The Constitutional Court has annulled the clause regarding the requirement for joint mediation in cases involving a primary employer–subcontractor relationship.