1. Legal Basis for Reinstatement Lawsuits and the Nature of Mediation as a Precondition for Litigation

Pursuant to the first paragraph of Article 3 of the Labor Courts Law No. 7036; in lawsuits filed with a claim for worker or employer receivables and compensation, and with a request for reinstatement, based on law, individual or collective labor contracts, applying to a mediator is a precondition for litigation. This regulation entered into force on 01.01.2018, and from this date onwards, it is not legally possible to file a lawsuit for reinstatement directly without exhausting the mediation process.

Article 20 of the Labor Law No. 4857 also confirmed this obligation by stipulating that an employee whose employment contract has been terminated, on the grounds that no reason was given in the termination notice or that the given reason was not valid, must apply to a mediator with a request for reinstatement within one month from the date of notification of the termination notice.

2. Application Periods and Procedure

Within the framework of judicial decisions and relevant legislation, the periods related to the reinstatement process have been determined as follows:

Application Period to the Mediator: It must be made within one month from the date of notification of the termination notice. In the decisions of the Constitutional Court and the Court of Cassation, it has been emphasized that this period is preclusive and that applications made after this period will be rejected due to the lack of a precondition for litigation.

Lawsuit Filing Period: In the event that an agreement cannot be reached at the end of the mediation activity, a lawsuit must be filed in the labor court within two weeks from the date the final mediation report is prepared.

Obligation to Submit Document: The plaintiff must attach the original or a certified copy of the final mediation report to the petition. If the report is not attached, the court will grant a peremptory period of one week; if it is not submitted within this period, the case will be dismissed on procedural grounds. If a lawsuit is filed without any prior application (to mediation), a decision of procedural dismissal will be rendered due to the lack of a prerequisite for the lawsuit, without any further action.

3. Special Situation in Principal Employer-Subcontractor Relationship

Article 3, paragraph 15 of Law No. 7036 stipulates that, when applying to a mediator with a request for re-employment in the presence of a principal employer-subcontractor relationship, both employers must participate in the negotiations together and their wills must be in conformity with each other to reach an agreement.

Court of Appeals Practice: The 9th Civil Chamber of the Court of Appeals deems it mandatory to apply to a mediator jointly against both the principal employer and the subcontractor in accordance with this provision; and states that if only one is applied to, the lawsuit must be dismissed on the grounds that the prerequisite for the lawsuit has not been met.

Constitutional Court Annulment Decision (AYM-2024/157K): The Constitutional Court annulled this paragraph (Article 3/15) with its decision dated 03.06.2025. The Court ruled that imposing on the employee the “obligation to investigate the principal employer-subcontractor relationship” disproportionately restricted the right of access to a court and violated the principle of proportionality.

4. Constitutional Court’s Assessments on “Excessive Formalism” and “Right of Access”

The Constitutional Court has set important criteria regarding the interpretation of the mediation requirement in re-employment lawsuits:

Application Form vs. Final Minutes: The Constitutional Court found local court decisions that considered the unchecked “re-employment” box in the mediation application form as the sole reason for rejection to be “excessively formalistic.” It was stated that what matters is whether the issue of re-employment was negotiated, as understood from the content of the final minutes.

Commencement of Period: The Constitutional Court stated that at the commencement of the mediation application period (one month), the type of contract and the termination procedure must be meticulously examined, and rejecting a case due to expiration of the period without such examination could violate the right of access to a court.

5. Outcomes of the Mediation Process and Remuneration

Agreement Status: If an agreement is reached in mediation regarding re-employment or compensation for non-re-employment, a lawsuit cannot be filed concerning the agreed-upon matters. These minutes have the force of a judgment.

Impasse: If the parties fail to reach an agreement, the two-hour mediation fee is covered by the Ministry of Justice budget. This fee will later be collected as a litigation cost from the losing party of the case.

Legal Standing: Even if the employer accepts reinstatement through mediation, if the employee cannot agree on other conditions (e.g., periods of unemployment, etc.), it is still accepted that the employee has a legal interest in filing a lawsuit.

6. Information Obtained from Secondary Sources

According to decisions characterized as secondary sources, the following points should be taken into consideration:

Counterclaims: If a mediation process has been conducted in the main case, and the claim in the counterclaim (e.g., the employer’s claim for notice indemnity) was explicitly negotiated and recorded in the mediation meetings, it is considered that a separate application to a mediator for the counterclaim is not required.

Content of the Record: For applications made after 02.07.2018, it is mandatory for the final record to clearly state which items of claim (reinstatement, severance, notice, etc.) were negotiated. Records containing abstract statements may be interpreted as not fulfilling the precondition for a lawsuit.

Voluntary Mediation and Annulment Lawsuits: If the annulment of a voluntary mediation record is requested due to reasons such as vitiation of consent, there are procedural discussions among court decisions regarding whether this situation should be examined as a preliminary issue in the main reinstatement lawsuit or as a subject of a separate lawsuit.

Difference with Commercial Cases: While the mediation requirement in commercial disputes (e.g., check recovery) is based on the Turkish Commercial Code, in re-employment lawsuits, this requirement directly stems from the Labor Courts Law and the Labor Law.

Conclusion: Re-employment lawsuits are absolutely subject to mediation, which is a prerequisite for litigation according to Law No. 7036. It is a procedural necessity to apply to a mediator within one month from the notice of termination and, if an agreement cannot be reached, to file a lawsuit within two weeks. Violation of these conditions leads to the procedural dismissal of the lawsuit without delving into its merits. A writing suggestion.

Why is Expert Attorney Support Necessary in the Mediation Process for Re-employment Lawsuits?

Mediation in re-employment lawsuits is an absolute prerequisite for litigation; even the smallest error regarding deadlines, procedural rules, and the content of the minutes can lead to the procedural dismissal of the case without a merits review. Therefore, conducting the mediation process, from the application stage to the drafting of the final minutes, with the assistance of an expert labor law attorney is of vital importance.

Specifically;

Incorrect calculation of the 1-month mediation application period,

Failure to clearly state the re-employment request in the mediation application,

Abstract or incomplete recording of the demands negotiated in the final minutes,

In the main employer-subcontractor relationship, applying to the wrong party,

Disregarding the “excessive formalism” and “right to access” criteria of the Constitutional Court and the Supreme Court,

can lead to workers losing cases even when they are in the right.

As is frequently observed in practice, when the mediation process is not conducted properly, courts rule for rejection on the grounds of lack of a precondition for litigation without examining the validity of the termination at all. For this reason, mediation is not merely a formal preliminary stage; it is a strategic process that determines the fate of the case.

Operating in the field of labor law on the Anatolian Side of Istanbul and especially in the Tuzla region, 2M Law Office meticulously conducts return-to-work lawsuits and mandatory mediation processes in light of current Constitutional Court and Supreme Court precedents to prevent any loss of rights. Managing the mediation process correctly before filing a return-to-work lawsuit is the first and most important step to winning the case. Tuzla / Istanbul – 2M Law Office