JUSTIFIED TERMINATION OF EMPLOYMENT CONTRACT BASED ON MOBBING

A. IN GENERAL

Since mobbing, which is a psychological harassment at the workplace, makes the victim's work life unbearable, it is pointless to expect the victim to continue that work life. For this reason, the legislator has given the victim of mobbing the opportunity to end this work life. The mobbing victim employee, on the other hand, has the right to terminate his/her employment contract with the employer for just cause due to this psychological harassment that is against morality and goodwill. In this study, the rightful termination of the mobbing victim is explained in detail.

B. THE CONCEPT OF MOBBING (PSYCHOLOGICAL HARASSMENT IN THE WORKPLACE)

The concept of mobbing means psychological violence, pressure, harassment or harassment. The Turkish Language Association has found the term “harassment” appropriate for the concept of mobbing. Today, especially in business life, many people are victims of mobbing. Examples of mobbing include the employer's continuous and consistent disrespectful behavior, humiliation or insult to the employee, and exclusion of the person in the workplace. The Court of Cassation defines the concept of mobbing as “In general, behaviors that occur in the workplace, become systematic, are done intentionally and show continuity, aim to intimidate and remove from work, and cause damage to the person's personality, health and professional status”[1]. During a systematic psychological attack against the employee, the employee is unable to respond to this attack.

What distinguishes mobbing from insult is that, beyond a one-time unkind behavior or insult, this unkind behavior has become continuous. This systematized harassment makes work life unbearable for the employee. Moreover, the mobbing victim cannot respond to this systematic psychological attack. Since the aim of the legislator while enacting the law is to emphasize and protect the value of the individual, some protective regulations have been included for the employee who is the victim of psychological violence. The employee who is subjected to mobbing may rightfully terminate his/her employment contract with his/her employer due to mobbing, and if the conditions are met, he/she is entitled to severance and notice pay.

ELEMENTS OF MOBBING

Mobbing, which is a form of psychological harassment, should be analyzed well in terms of its dimensions and consequences. Not every disrespectful or negative event encountered in the workplace can be considered within the scope of mobbing. The fact that the unfair behavior suffered has a psychological dimension, that the behavior takes place at work, that it is systematized, that it is done intentionally, that it causes harm to the victim and that it includes negative attitudes and behaviors aimed at intimidating the victim; shows that this injustice suffered is a psychological harassment (mobbing). In the Information Guide on Psychological Harassment in Workplaces (Mobbing) published by the Ministry of Labor and Social Security, the elements of mobbing are also included. All kinds of physical violence, disrespectful attitudes that do not become permanent, and attitudes and behaviors that take place outside the workplace cannot be considered as mobbing elements.

This psychological harassment may be vertical (hierarchical) or horizontal (between equals). Although the whole of the behaviors applied by the superior to the subordinate, which is a common understanding, is perceived as mobbing, the harassment applied by the subordinate to the superior or by equals to each other is also within the scope of mobbing.

RIGHTS GRANTED TO THE MOBBING VICTIM EMPLOYEE

Mobbing is a type of psychological harassment that takes place continuously and deliberately and includes intentional behaviors to the extent of insult. According to Article 49 of the Code of Obligations No. 6098, the person who commits this defective and unlawful behavior is liable in tort. The legislator protects the victim who is harmed by an unlawful act, and has granted various rights to the mobbing victim employee. The consequences of mobbing in terms of labor law, administrative law and criminal law are explained below.

A. Rights granted by the Turkish Civil Code No. 4721 (“TCC”) to the employee who is the victim of mobbing

Articles 24 and 25 of the Turkish Civil Code provide a general regulation for persons whose personal rights are attacked. According to these regulations, the victim may request the judge to protect him/her against the attackers, to prevent the danger, to terminate the attack if there is an ongoing attack and to determine the illegality of this attack. Mobbing, which is psychological harassment, is an attack on personal rights. According to the relevant articles of the TCC, the victim of mobbing has the right to file a “restraining action” against the employer for the termination of the harassment and a “determination action” for the harassment that has ceased. In case of a serious and imminent danger, she may also file a lawsuit for the prevention of harassment.

B. Rights Provided by the Turkish Code of Obligations No. 6098 (“TCO”) to the Employee Victim of Mobbing

“ARTICLE 417/1- The employer is obliged to protect and respect the personality of the worker in the service relationship and to ensure an order in the workplace in accordance with the principles of honesty, in particular to take the necessary measures to prevent psychological and sexual harassment of workers and to prevent further damage to those who have been subjected to such harassment.”

An employment contract between an employer and an employee is a type of contract that imposes bilateral obligations. The employer is obliged to pay wages to the employee and the employee is obliged to perform the work assigned in accordance with the instructions of the employer in return for the wages received. In addition, the employer has an obligation to protect the employee[2] and the employee has an obligation of loyalty[3]. The employer's obligation to protect and look after the employee results in the employer protecting the employee by looking after the interests of the employee and avoiding all behaviors that may harm the employee. As clearly stated in Article 417/1 of the TCO, the employer is obliged to take precautions not to harm the employee and to ensure that they are not harmed, even by someone else, due to the fact that the employer is a party to the employment contract between the employee and the employee. An employer who inflicts psychological harassment on his employee is in violation of Article 417 of the TCO.

“ARTICLE 417/3: Compensation for damages arising from the death of the employee, damage to bodily integrity or violation of personal rights due to the employer's behavior contrary to the law and the contract, including the above provisions, is subject to the provisions on liability arising from breach of contract.”

Paragraph 3 of the above-mentioned article specifically regulates that the employer who inflicts psychological harassment on its employees shall be liable for breach of contract due to mobbing. The employee whose personal rights are violated through mobbing may claim pecuniary and non-pecuniary damages based on the tort provisions regulated under Article 49 of the TCO. In its decision dated 2013, the General Assembly of the Court of Cassation ruled that the employee who is the victim of mobbing will receive pecuniary and non-pecuniary compensation.

“... the act of psychological harassment constitutes a violation of the employer's obligations to protect (observe) and treat the employee equally... this situation that the plaintiff lawyer has been subjected to is in the nature of psychological harassment, and in this way, it is aimed to make the plaintiff lawyer resign or retire and leave the workplace. The plaintiff employee has the right to terminate the service contract for just cause due to the psychological harassment he/she has been subjected to from the defendant employer, or he/she has the right to exercise his/her other legal rights by continuing to work (for example; filing a lawsuit for pecuniary and non-pecuniary damages). In this case, it should be accepted that the psychological harassment occurred in the concrete case and an appropriate amount of non-pecuniary damages should be awarded in favor of the plaintiff... “[4]

C. Rights Granted to the Victim of Mobbing by Labor Law No. 4857

The Labor Law grants the right to refrain from work, the right to terminate the employment contract immediately for just cause and the right to claim discrimination compensation in cases where the employee cannot be expected to work[5].

The right to refrain from work allows the employee to refrain from working until the necessary measures are taken, after requesting that the necessary measures be taken in the face of a serious and imminent danger. Termination of the employment contract for just cause is the rightful termination of the contract between the employee and the employer due to circumstances that do not comply with the rules of health, good faith and morality. The right to claim discrimination compensation is an additional compensation given to the employee in cases where the employer deprives the employee by separating him/her from other employees.

JUSTIFIED TERMINATION OF THE EMPLOYEE DUE TO MOBBING 

Article 24 of the Labor Law No. 4857 stipulates the conditions under which an employee may rightfully terminate his/her employment contract with his/her employer without waiting for the contract to expire. The fact that the behaviors involving mobbing do not comply with the rules of morality and goodwill allows the employee to terminate the employment contract justifiably based on the second paragraph of the article. In the case of psychological harassment that makes working life unbearable for the employee, there is a violation of morality and good faith.

Since the termination of the employment contract due to mobbing is a termination based on just cause, the employee will also be entitled to severance pay. In addition, if the conditions are met, he/she may also be entitled to discrimination compensation according to Article 5 of the relevant law. What the employee who will terminate the employment contract on the grounds of mobbing should do is to prove the existence of strong indications that mobbing has occurred. Because the existence of psychological harassment is difficult to prove. Due to the difficulty of proving psychological harassment, the Court of Cassation does not require proof of mobbing in a way that leaves no doubt, it is sufficient to present strong indications. With actual presumptions, ease of proof and first sight proof, approximate proof should be sought, but not absolute proof. The employer who is accused of psychological harassment is also obliged to prove that there is no mobbing.

“In the case subject to the decision, the failure to prove the plaintiff employee's poor performance, e-mail contents, camera recording contents, medical board reports, warning letters, password sharing by the branch manager and other colleagues to ensure customer satisfaction and to achieve the bank's goals, The problems experienced due to the plaintiff's negative response to the requests regarding the use of passwords belonging to someone else and making transactions without customer instructions, the failure to provide the plaintiff with the keys and passwords necessary for the plaintiff to perform his duties after the change of duty location, and the statements of the plaintiff witnesses, it has been concluded that the plaintiff employee was targeted and subjected to behaviors in the nature of psychological harassment that spread over a long period of time and became systematic. In the face of the strong facts regarding the existence of these pressures against the plaintiff employee, the defendant employer could not prove that the plaintiff was not subjected to psychological pressure.''[6]

Justified termination has the feature of immediately terminating the employment contract between the employee and the employer with a unilateral declaration of will without requiring the acceptance of the other party. This declaration of the employee who wants to terminate the employment contract based on just cause starts to have legal consequences from the moment it reaches the employer. The employee must exercise his/her right to terminate the employment contract based on just cause within 1 year from the occurrence of the behavior contrary to morality and good faith that gives him/her the right to terminate the employment contract and within 6 working days from the date of learning of such behavior, otherwise the right will expire. The reason why the legislator has set this statute of limitations is to prevent the employee from using his/her right arising from the matter that caused the victimization as a threat against the employer. If the termination of the employment contract is not based on the mobbing suffered by the employee or any justified reason that enables the employee to terminate his/her employment contract, the employee resigns and cannot claim the compensation that he/she will earn with justified termination from his/her employer.

REFERENCES:

*MOBBING INFORMATION GUIDE, T.C. MINISTRY OF LABOR AND SOCIAL SECURITY

*Master's Thesis on PSYCHOLOGICAL TACISIS (MOBBING) AND LEGAL CONSEQUENCES IN TURKISH LAW ERKAN PİR Istanbul, 2019 ,T.C. MARMARA UNIVERSITY SOCIAL SCIENCES INSTITUTE STUDY ECONOMICS AND INDUSTRIAL RELATIONS DEPARTMENT OF LABOR LAW AND SOCIAL SECURITY LAW SCIENCE DIVISION

*PSYCHOLOGICAL HARASSMENT (MOBBING) IN THE LIGHT OF JUDICIAL DECISIONS IN TURKISH LAW AYŞEGÜL DALGALIDERE THESIS ADVISOR: DR. ÖĞR. ÜYESİ ÖZGE TUÇE GÖKALP APRIL - 2019, T.C. KIRKLARELİ UNİVERSİTESİ SOCIAL SCIENCES INSTITUTE DEPARTMENT OF LABOR ECONOMICS AND INDUSTRIAL RELATIONS MASTER'S THESIS

*JUDICIAL DECISIONS AND PRECEDENT

*TURKISH CIVIL CODE NUMBERED 4721

*TURKISH CODE OF OBLIGATIONS NUMBERED 6098

*LABOR LAW NO. 4857

[1]9th Civil Chamber of the Court of Cassation E:2014/37332 K:2016/8155 T:04.04.2016

[2]Art. 417 of the TCO No. 6098, Art. 4 of the Law on Occupational Health and Safety No. 6331

[3]TURKISH LAWUNDA PSYCHOLOGICAL TACISM (MOBBING) AND LEGAL CONSEQUENCES Master's Thesis ERKAN PİR Istanbul, 2019, T.C. MARMARA UNIVERSITY SOCIAL SCIENCES INSTITUTE STUDY ECONOMICS AND INDUSTRIAL RELATIONS DEPARTMENT OF LABOR LAW AND SOCIAL SECURITY LAW SCIENCE DIVISION

[4]YHGK, (E.2012/1925, K.2013/1407,) 23.01.2019

[5]PSYCHOLOGICAL HARASSMENT (MOBBING) IN THE LIGHT OF JUDICIAL DECISIONS IN TURKISH LAW AYŞEGÜL DALGALIDERE THESIS ADVISOR: DR. ÖĞR. ÜYESİ ÖZGE TUÇE GÖKALP APRIL - 2019, T.C. KIRKLARELİ UNİVERSİTESİ SOCIAL SCIENCES INSTITUTE DEPARTMENT OF LABOR ECONOMICS AND INDUSTRIAL RELATIONS MASTER'S THESIS

[6]2015/2274 Esas, 2018/1428 Decision of the Court of Cassation General Assembly of Civil Chambers dated 04.10.2018

Av. Emre DÖNMEZ & Stj. Av. İrem POLAT