Is it possible to serve the termination notice or defense request etc. personnel related documents to the personnel by registered electronic mail or is it considered as valid that the documents such as employment agreement and pay slip are signed by the personnel with electronic signature? While the answers to all these questions and the operation of the matter in adjudication are being waited for, the evidences subjected to any dispute or submitted to the lawsuits are not common yet. In order to elaborate the matter, it is required to examine the legal arrangement of the Registered Electronic Mail and Electronic Signature.
REGISTERED ELECTRONIC MAIL
Electronic mail (e-mail) has become one of the most prevalent communication tools and channels in our country and in the entire world as the internet has become popular, any kind of data is sent easily and it is cost efficient. The technical reliability and legal validity of any kind of document sent through e-mail (e-mail messages) is of great importance both for the sender and the receiver. Registered Electronic Mail (REM) system has legally become compulsory for the joint stock companies, limited liability companies and limited partnerships by share. The use of Registered Electronic Mail has become compulsory, but it is also interesting that no penal sanction is stipulated for not using it. Registered Electronic Mail (REM) is a secure and legal electronic mail service where the identities of the sender and the receiver are apparent, the sending time and content cannot be changed, and which is legally valid in case of any dispute. Therefore, REM records provide the assurance that the standard e-mail systems cannot provide. Pursuant to the Regulation on the Procedures and Principles Regarding the Registered Electronic Mail System, the records created by the Registered Electronic Mail Service Provider for the services offered through the REM system are binding and considered as material evidence unless otherwise is proven.
In basic, an electronic signature is the numerical data used for signing the documents in the electronic environment. Electronic signature allows controlling the security of the data signed, as well as who signed it. The electronic signature is consisted of letters, characters or symbols guaranteeing with electronic or similar tools that an information is sent without impairing the integrity (in the original version created by the sender) and by verifying the identities of the parties in an environment closed to the access of the third parties. Pursuant to the Electronic Signature Law No. 5070, Secure Electronic Signature is recognized as an equivalent of handwritten signatures. According to the provision added to the Civil Procedure Law with the same law; electronic data duly created with secure electronic signature are considered as legally binding. The Civil Procedure Law in force also sets out a provision in line with this. (Article 205) This data is respected as a material evidence unless otherwise is proven.
Time stamp is another secure technology regulated by law with legal consequences as important as the electronic signature. Time stamp is defined as a record verified with electronic signature by the electronic certificate service provider in order to determine the time when an electronic data is created, changed, sent, received and/or recorded. There is a State Council decision stating that secure electronic signature causes the same legal consequence with the handwritten signature. In the State Council decision taken on January 30, 2013, a reference has been made to the article 5 of the Electronic Signature Law by saying, "Although the practice on signing the court decisions with wet signature and putting a signed copy of the decision to the case file still continues, it is not considered as a deficiency which should be eliminated that a court decision signed with electronic signature is not also signed with wet signature."
HOW WILL REM AND E-SIGNATURE BE REFLECTED IN THE LABOR LAW?
It will be better to consider the areas of use for these systems in the Labor Law with concrete examples after examining the legal steps of the Registered Electronic Mail and Electronic Signature. First of all, the burden of proof for the employee-employer relationship is subjected to heavy requirements against the employers before the courts. As the written documents signed by the personnel are important in the Labor Courts, it is an issue of concern how the new system will be used by the courts. Another important point is how to make the use of registered electronic mail and electronic signature compulsory for the personnel. The use of these systems is not compulsory for the individuals.
The practicality of the regulation on the Registered Electronic Mail in the labor law is awaited impatiently. This becomes a current issue particularly when it is difficult to serve a notice to the personnel personally or through notary public. Even if the areas of use for the regulation are not established completely yet, the validity of a notice or using such notice as an evidence in the Labor Courts will become important for the employers.
Let's analyze the matter with the example on the obligation for having the pay slip signed by the personnel and handed over to the personnel; the employer has to give a slip signed or bearing a private mark of the workplace that shows the salary to the personnel for the payments made at the workplace or through a bank. For the salary payments, the pay slips should have been signed as a proof that the pay slips including the details of the salary, as well as their content and amount are accepted by the personnel. In the lawsuits filed against the employer, the signed pay slips are very important evidences for proving the salary and other rights (overtime, religious-national holiday fees). There are even administrative fines imposed to the employers in case the pay slip is not given to the personnel. The personnel using electronic signature and signing the pay slip through this system protect the validity of their signature with the legal regulation, and it is not clear whether the document signed this way means the document is given to the person signing it. It is also not clear whether the payroll is given to the personnel who signed the payroll through the e-signature system or whether the employer fulfilled their liability to give the payroll. As there is no clearness about giving the payroll, using this method for the documents having been signed by the personnel creates some hesitations. It also applies to the employment agreement, defense request letter and even termination notice documents that have to be given to the personnel.
The matter that should be noted particularly is the document system and electronic signature use should be integrated in order the document signed by the personnel with electronic signature to be valid. The signed document should be suitable for taking a print out with electronic signature; otherwise, even if it is considered that the signing procedure is completed, there will be a lack of function about submitting the relevant personnel documents to the court file. As the practice of the system in the Labor Courts is not clear yet, the matter causes some questions. We will see with trial how the use of registered electronic mail and electronic signature will be without treating unfairly to the parties and within the scope of the legal regulation.
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.