Employee–EmployerDisputes

Scope

This area covers private law disputes arising from the formation, performance and termination of the employment relationship between employee and employer. Termination of the employment contract, employment receivables, compensation and reinstatement claims are the principal subjects. When the working relationship ends, several claims may arise at the same time; for this reason, wages, working time and the conditions of termination are addressed separately in order to determine on which items there is a dispute. Disputes arising from collective labour relations, on the other hand, are subject to a separate system under Law No. 6356 on Trade Unions and Collective Labour Agreements.

Common issues

• Legal consequences of termination for just cause or for a valid reason
• Severance pay and notice pay claims
• Reinstatement claims and wages for the idle period
• Receivables for wages, overtime, annual leave and weekly rest days
• Allegations that social security premiums were underpaid or not paid at all
• Mobbing allegations and claims concerning the duty of equal treatment in the workplace

How does mediation work in this type of dispute?

In employee–employer disputes, mediation is a precondition for bringing an action. Under Art. 3 of the Labour Courts Law No. 7036, applying to a mediator is compulsory before filing actions concerning employee or employer receivables and compensation based on the law or on an individual employment contract or collective labour agreement, and actions for reinstatement.

• The application is made to the mediation office at the competent courthouse; the office appoints a mediator.
• The mediator concludes the process within three weeks of appointment; in compelling circumstances, this period may be extended by a maximum of one week.
• If the parties reach an agreement, a settlement agreement is drawn up; if not, final minutes are prepared. The final minutes must be attached to the statement of claim; an action filed without fulfilling the precondition is dismissed on procedural grounds.
• Applying to a mediator suspends limitation and preclusive periods to the extent provided by law.
• For a reinstatement claim, an application to a mediator must first be made within one month of service of the notice of termination; if no agreement is reached, an action is filed before the labour court within two weeks of the date on which the final minutes are drawn up (Art. 20 of Law No. 4857).
• Actions for pecuniary and non-pecuniary damages arising from occupational accidents or occupational diseases, together with related actions for determination, objection and recourse, are considered to fall outside the scope of the precondition; for suitable claims, voluntary mediation may additionally be considered.

The mediator is an independent and impartial third party; the mediator is not the representative of either party and does not decide who is right. The fact that applying to a mediator is a precondition does not make an agreement compulsory. The sessions are confidential. The settlement agreement becomes a document having the force of a court judgment under the conditions laid down in Law No. 6325.

Matters that may be discussed in the sessions

• Wages and working time
• Leave and compensation items
• Previous payments and the receivable against which they are to be set off
• Conditions for returning to work

The same total amount may be made up of different receivable items. For this reason, which amount is accepted, which is disputed and which payments have previously been made are shown separately. The parties may also agree on certain claims only. In agreements relating to reinstatement, matters such as re-employment, wages for the idle period and compensation for non-reinstatement are subject to specific legal conditions (Art. 21 of Law No. 4857).

Process and points to note

The employment contract, the notice of termination, payslips, employment start and termination notifications, bank account records, time and attendance records, leave records and correspondence are the documents to be reviewed. The date and manner of service of the notice of termination directly affect the time limits. In calculating receivables, the length of service, wages and additional payments are decisive; where there are differing records on working time or payments, each party discloses the information on which it relies.

When the agreement is drafted, it clearly states which amount is accepted for which receivable, the date and method of payment and any other obligations. This ensures that the parties can read and understand what they have accepted.

Our office’s approach

The office reviews the employment contract and the termination process and determines the legal basis and time limits of the receivables that may be claimed. Preparation for mediation sessions, the legal review of the settlement agreement and, in matters where no agreement is reached, representation before the labour court fall within the scope of this work. Where the role of mediator has been assumed in a dispute, the office does not act as counsel for any of the parties to that dispute.