The 9th Chamber of the Turkish Court of Cassation has issued a ruling numbered E. 2021/9540, K. 2021/14240, T. 13.10.2021, regarding the requirement of applying to a mediator against both the main and sub-employer of the employee in reemployment lawsuits.
Background of the Decision
In the request of the 7th Civil Chamber of the Regional Court of Appeals (“Regional Court of Appeals”) dated 07.04.2021 stated that in circumstances where the employees work as a sub-employer employee in the workplace that belongs to the main employer, the reemployment lawsuit should be directed to both the main employer and the sub-employer, it has been accepted by the 22nd Civil Chamber of the Court of Cassation (Closed) that there is a compulsory joinder of parties between the defendants, before filing a lawsuit with a claim based on the main employer and sub-employer relationship and reemployment in labor courts. It is held by the Regional Court of Appeals that as a condition to apply for compulsory mediation and "in case of the existence of the main employer and sub-employer relationship”, when a mediator is applied for a reemployment request, it is stated that the employers are required to participate in the mediation negotiations together and their wills are compatible with each other in order for the agreement to be realized.
Moreover, the Regional Court of Appeals stated that there is a disagreement between the Regional Courts of Appeals and the Court of Cassation regarding whether the employee should show both employers as parties during the mediation phase. Therefore, the Regional Court of Appeals requested the settlement of the dispute on this issue.
Scope of the Decision of the Court
The disagreement between the decision of the 7th Civil Chamber of the Regional Court of Appeals, dated 18.02.2021, numbered E. 2021/415, K. 2021/274, and the decision of the 6th Civil Chamber of the Regional Court of Appeals, dated 16.05.2019 numbered E. 2019/570, K. 2019/1808, is at the point of whether there is an obligation to apply together against the main employer and the sub-employer at the mediation stage, which should be applied before the lawsuits filed with the request for reemployment.
The Court of Cassation emphasized that, in practice, in the lawsuits filed by the employee employed by the sub-employer with a request for reemployment, the issue of party status arises when it is determined that the defendant is not the real employer, depending on the determination that the main employer and sub-employer relationship is invalid or based on collusion. In addition, in the decision, it was stated that if the lawsuit is rejected by the court, the employee faces the risk of missing the one-month litigation period stipulated for reemployment lawsuits, since the employee has to file a lawsuit against the real employer. In lawsuits filed with a request for reemployment, it should be accepted that there is a compulsory joinder of parties between the main employer and the sub-employer, and the necessity of directing the hostilities to both the main employer and the sub-employer should be taken into account in the reemployment lawsuit filed by the employee. It should also be noted that even if the claimant sub-employer employee does not claim that the main employer and sub-employer relationship is invalid or collusive, the employee must apply for the mediation against both employers. In addition to all these, it has been decided that the fact that the principal employer is deprived of the mediation process, which is one of the means of resolution of the dispute, and condemned directly to the trial process is also a violation of the right to be heard.
Accordingly, the Court of Cassation ruled that in the event of the existence of a main employer and sub-employer relationship, it is obligatory to apply to a mediator jointly against the main employer and the sub-employer in order to fulfill the condition of applying to a mediator with a request for reemployment. In addition, it has been decided that when an agreement cannot be reached in the mediation process and a reemployment lawsuit is filed against only the main employer or only the sub-employer, the lawsuit should be rejected on procedural grounds to due failure to fulfill the mediation lawsuit requirement.