The Obligation for the Principal and Subcontractor Employers to Jointly Participate in Mediation Has Been Annuled by the Constitutional Court 24 October 2025
An important Constitutional Court decision has been published regarding the mediation process that an employee can apply to with a request for reinstatement after the termination of employment relations in the workplace. The Constitutional Court ruled that the provision in paragraph (15) of Article 3 of the Labor Courts Law No. 7036, which states, "In cases where there is a principal employer-subcontractor relationship, for a request for reinstatement to be submitted to a mediator, the employers must participate in the mediation talks together and their intentions must be compatible for an agreement to be reached," is unconstitutional. The decision was published in the Official Gazette dated October 17, 2025, and numbered 33050.
The objection in question was brought before the Adana 6th Labor Court upon application. The application decision summarized that it is a legal obligation for an employee whose employment contract has been terminated to apply to a mediator within one month with a request for reinstatement, and that this application constitutes a condition precedent for filing a reinstatement lawsuit. The rule in question requires that, in cases where there is a principal-subcontractor relationship, the application for mediation must be made to both parties, thereby imposing the burden of investigating the principal employer on the employee.
The court argued that this regulation imposed an obligation on the employee to "identify the principal employer," that might not be possible in some cases, and that made it difficult for the employee to file a reinstatement lawsuit. Furthermore, it was stated that if the principal employer-subcontractor relationship is determined during the trial phase, the case will be dismissed on procedural grounds because the condition of applying to a mediator has not been met, and that this situation constitutes an excessive interference with the worker's right to a fair trial and access to court. Based on these reasons, it was argued that the contested rule disproportionately restricted the right of access to court guaranteed by Article 36 of the Constitution.
In its decision, the Constitutional Court emphasized that the fundamental purpose of the regulation in question was to prevent confusion regarding party status in reinstatement cases and to ensure that disputes that may arise between the principal employer and the subcontractor could be resolved simultaneously through the mediation process. It was noted that this approach was important in terms of both procedural economy and efficiency in litigation. Furthermore, the Court stated that the state has the discretion to determine the rules of procedure and that the condition introduced through the exercise of this discretion does not constitute an unreasonable interference.
The Constitutional Court also stated that the issue in question could be resolved within the existing legal system. Indeed, Article 124 of the Code of Civil Procedure No. 6100 dated 12/1/2011, titled "Voluntary Change of Parties," stipulates that, as a rule, a change of parties in a case can only be made with the express consent of the opposing party; however, in cases arising from material error or not contrary to the principle of good faith, the judge may accept the change of party without seeking the consent of the opposing party. Furthermore, it is stipulated that if the incorrect or incomplete identification of the party in the petition is based on an excusable mistake, the judge may accept the change of party without seeking consent. The court stated that this regulation allows for a change of parties in cases where an employee, unaware of the principal-subcontractor relationship or unaware that this relationship is invalid or fraudulent, files a reinstatement lawsuit against the wrong party, thereby eliminating the risk of the employee missing the deadline for filing a lawsuit.
Consequently, the Constitutional Court ruled that paragraph (15) of Article 3 of the Labor Courts Law No. 7036 was contrary to Articles 13 and 36 of the Constitution and decided to annul it. Thus, the requirement to file a claim against both the principal employer and the subcontractor in reinstatement claims has been eliminated.
You can access the full text of the decision via the link below:
https://www.resmigazete.gov.tr/ eskiler/ 2025/ 10/20251017-10.pdf
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