The rules governing mobbing and harassment in the work place had been set out in precedent court decisions, indirectly in the Turkish Civil Code, Labor Code until the recent entry into force of the new Turkish Code of Obligations on July 1, 2012.
It has been noted that the filing of mobbing claims have increased following the promulgation of the Turkish Code of Obligations. The new Code of Obligations refers to mobbing as psychological harassment and stipulates that it is the employer's contractual obligation to protect the employee and ensure that the working environment is governed by the honesty principle and adopt the precautions to avoid further damages to those who have suffered harassment.
Article 416 of the new Code of Obligations stipulates that,
"The Employer is under the obligation to protect and respect the personal rights of the employee and to ensure a working environment governed by the honesty principle, and in particular to ensure that employees are not subject to sexual or psychological harassment and adopt the necessary precautions to avoid further damages to those who have suffered such harassment. The employee's right to compensation arising from such breach of personal rights shall be construed as liability arising from breach of contract."
However, prior to the promulgation of the new Code of Obligations, mobbing events were evaluated within the framework of the honesty principle (Article 2 of the Civil Code), protection of personal rights (Article 8 of the Civil Code), the equality principle (Article 5 of the Labor Code), breach of the duty to act ethically and in good faith (Article 25 of the Labor Code) and the employer's obligation to protect the employee (Article 77 of the Labor Code and Article 332 of the previous Code of Obligations).
In other words the promulgation of the new Code of Obligations has not introduced mobbing, however it has codified the obligations of the parties concerned. As in other continental law systems, Turkish Courts are only guided by precedent court decisions. Therefore, the existence of the codified rights of the parties as of July 1, 2012 will enable the courts to provide the legal grounds for their decisions regarding mobbing with relatively more ease, whereas in the past, the decisions were based on the above general principles.
The new Code of Obligations is not retroactive. In the event of a lawsuit for events which occurred prior to July 1, 2012, it could be argued that the new Code of Obligations should not apply. However, it could also be argued that the liability arises from contract (the employment contract) and not tort, and the breach of contract by the employer would be linked to the Complaint and not the previous events. For this reason the Complaint has been filed after the code has entered into force and the linked claims to compensation can be treated within the scope of the new Code. Nevertheless, we do not know the impact of the new code on the future court decisions and we can only speculate on this matter.
Accordingly, currently, an employee who is subject to mobbing could request compensation for damages (including moral compensation) Civil Code Article 25, Article 416 of the new Code of Obligations, resign with immediate effect and obtain his/her severance payment (Article 24/II of the Labor Code) or file a lawsuit for the protection of personal rights; (while continuing work) Article 25 of the Civil Code.
A harassment complaint against the person who has committed mobbing could also be filed to the Public Prosecutor as a criminal law complaint depending on the actions comprising mobbing. The Public Prosecutor would assess the evidence and decide on whether criminal proceedings should be initiated under the provisions of the Turkish Criminal Code.
From the total number of the 3.113 suspects tried in sexual harassment criminal lawsuits in 2011, 1,126 of the suspects were sentenced and 778 were acquitted (the remaining cases were resolved by other procedural decisions). However, no one was tried for committing this crime in an employment relationship.
Although there were only a handful of precedent mobbing cases until recently, it has been noted that mobbing complaints have significantly increased since July 2012. The inclusion of mobbing in the Code of Obligations and the press interest regarding the matter has triggered a dormant problem, as a recent study showed that 10% of all workers in Turkey believe that they suffer from mobbing.
Reportedly some claimants confuse stressful working environments with mobbing. However, due to the sensitivity of the matter and the general tendency to protect the employee, the Turkish courts have accepted that circumstantial evidence is sufficient to ascertain the existence of mobbing. The practice of the courts will provide further clarity regarding the elements of mobbing and consequences.
In the mean time, all employers should implement internal rules and policies that will provide guidance to avoid mobbing and harassment, and to protect the rights of each and every employee.
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.