As is known, changes in the working life and market conditions often lead to legal debates. All over the world including the United States of America, it has been a common practice to make laws on requirement to protect psychological integrity of employees in addition to their personal rights. Employees state that they are exposed to certain psychological stresses as a result of long working hours, big projects and works carried out as a team.
Which behaviours can be considered as mobbing, what are the legal and criminal sanctions applicable against mobbing?...
Definition of MOBBING:
- "Psychological abuse (mobbing) in Turkish Law" has been defined as bad treatment, threat, violence, humiliating behaviours applied systematically or repeatedly in the judgement rendered under the Merits No. 2012/9-1925 and Decision No. 2013/1407 of 25.09.2013 Supreme Court, Assembly of Civil Chambers.
- As is seen, Supreme Court Decision provides provisions on application of mobbing to an employee not only by employer but also by other employees in the workplace.
Criteria indicating the occurrence of MOBBING (Psychological Abuse):
- Psychological abuse may occur in different ways: interrupting the speech of an employee or telling off by raising voice, frequent criticism, ignoring, humiliating through implicative behaviours, engaging with unqualified works or otherwise assigning heavy duties. An act would be considered as psychological abuse, i.e. Mobbing, when committed by specifically targeting an employee. In addition, it must occur within a certain period of time in a systematic manner. Naturally, the aforementioned criteria would vary subjectively based on the characteristics of each case.
Examples of mobbing: The following are the most frequent mobbing cases encountered under the current employment conditions:
- Inquiring the occupational qualifications, damaging self-confidence,
- Giving the feeling of distrust, thus creating a constant stress situation,
- Intentionally assigning duties that cannot be completed within the specified period of time and imposing certain sanctions (longer working hour or low salary, etc.) on the employee by this reason,
- Refraining from providing information to an employee to make that employee work with incomplete information,
- Ignoring, isolating an employee from the group, disruption in social relations in the workplace,
- Reduction of authorities given to an employee without any justified reason.
Legal Character of Mobbing and Applicable Sanctions: There is a special regulation under Article 417 "Protecting Personal Rights of Employees" in Turkish Obligations Code No. 6098. This article expressly addresses the term mobbing (psychological abuse). Accordingly; "An Employer is obliged to protect and respect personal rights of employee in the course of employment relationship, establish an order in compliance with the principles of integrity in the workplace and take measures particularly for preventing the employees from being exposed to psychological and sexual abuse and protecting them from suffering further damage from such abuses."
- Mobbing is addressed as a Psychological Abuse; therefore, it is a tortious act. It is possible to claim material and moral damages in actions brought against tortious acts. In other words, claims in connection with mobbing cannot be brought forwards as is the case with actions for payables to employees.
Rights of a Mobbing Complainant: The following are the personal legal rights of a person in case of a mobbing complaint:
- Right to terminate employment agreement for good cause;
- Right to claim damages by reason of discrimination under certain circumstances;
- Right to claim damages in accordance with Codes of Obligation and Turkish Civil Law;
- Right to file a complaint against manager applying mobbing and right to claim moral damages;
- Right to claim compensation for bad faith damages provided that the required conditions are in place.
- Mobbing complaints are filed to the Labour Court.
ON SUMMARY, as explained above, a person is entitled to resign for good cause in case of experiencing such problems. Normally, Article 26 of Labour Law states "right to terminate the agreement vested upon both employee or employer in cases that are in breach of moral and good faith principles cannot be used upon expiry of 6 business days starting from the date that one party discovers such behaviours of the other party and in any case, upon expiry of one year following the occurrence of such behaviour" for an employee intending to terminate the employment agreement; however, this 6-day time limit is not sought in mobbing cases. This is the most important particularity of mobbing in case of termination for good cause.
In this case, an employer should consider the entitlement of an employee to terminate for good cause in any case in the event such events arise.
- Another important particularity is the fact that mobbing does not necessarily have to come from employer for an employee to use right to terminate for good cause. In case mobbing is applied by another employee working in the same workplace, then suffering employee must report the situation to the management immediately in writing. An employee would be entitled to termination for good cause if employer does not take measures required for prevention of mobbing.
- Supreme Court's 22nd Civil Chamber Decision No. 2013/30811, Merits No. 2013/693 of 27.12.2013 specifies that concrete evidences shall not be sought for mobbing allegations, facts that would lead to the suspicion of mobbing in the workplace would suffice and the defendant is obliged to prove that mobbing did not happen in the workplace.
- We recommend you to pay attention to the aforementioned particularities in the presence of such risks given the fact that mobbing is a new concept in our laws and the relevant cases are increasing in time.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.