Turkey: Evaluation Of Whistleblowing Within The Scope Of Labor Law

Last Updated: 12 August 2015
Article by Özge Mızrak

"Whistleblowing" is described as an employee to disclose and reveal any information related to the corruptions, unlawful acts or negligible acts and transactions they learn at the workplace during the term of their employment agreement. Having a quite wide application area particularly in the common law, this concept does not have an exact equivalent in the Turkish law, as well as there is no special regulation yet. Several expressions are used for this concept in the literature such as "disclosure and notification of employee" or "whistleblowing". The intersection point of this concept with the labor law is the employee's duty of loyalty and has significant effects in terms of the Labor Law.

The employee's duty of loyalty is being regulated in the Turkish Law of Obligations under "Duty of Care and Loyalty". Accordingly, the employee has to provide care for performing their job and act loyally for protecting the righteous interest of the employer as long as the employee's employment relationship continues. The employee's confidentiality obligation is also a result of the duty of loyalty, and it is an issue of concern whether the whistleblowing employee is protected legally. The duty of loyalty includes the employee to avoid acts damaging the employer or the workplace, avoid acts not in line with honesty and loyalty, avoid acts damaging the fame and reputation of the employer, notify the employer about the problems and dangers they notice at the workplace, duly perform their job with the required care, and not disclose any work or workplace related commercial information learned during the employment relationship to any third party. Our article is related to whether all information learned at the workplace falls within the scope of confidentiality obligation.

In case the employee discloses some of the information they learn at the workplace, it is possible to take this into the scope of whistleblowing and legally protect it. In order to talk about a legally protected whistleblowing, first of all the whistleblowing person must be from the workplace, there must be an unlawful situation, and this situation must be disclosed to the people other than the people performing this unlawful act.

Unlawful acts might be first considered as contrariness to the labor law and within this scope, contrariness to the occupational health and safety rules, social security law, child or illegal worker employment prohibitions. They are, however, not limited with these. Economic crimes including corruption and bribery, contrariness to the tax, competition or capital market rules, and contrariness to the food, health and environmental legislation are examples that can be disclosed as an unlawful act. In addition to the rules brought by the state, the contrariness to the ethical rules established by the institutions, professional organizations or civil society organizations, which the companies are a member of, or established by the company itself are also within the scope of whistleblowing. Contrariness to the legislation related to the food safety in the goods produced at the workplace, failure to take the required measures in production for preventing environmental pollution, and causing loss of tax through an irregularity in the accounting records are some concrete examples for whistleblowing.

The disclosure made by the employee for the unlawful acts at the workplace may be legally protected in case it meets some conditions. Firstly, the information from a whistleblower should be correct and important.

Secondly, the employer should first inform their supervisor about the information, the competent authority if they cannot get result from their supervisor, and finally to the public and media. It is possible for the employer to apply directly to the public in case they believe the evidences will be tampered if they inform the employer about the matter. And thirdly, while whistleblowing, the whistleblower should not act with a personal hostile and does not have a purpose of gaining a personal income.

In our country, there is a special regulation related to solving the problems regarding the whistleblowing concept, and we must address the legal regulations including this concept, whether it is a bit limited. With the provision "the filing of a complaint or the participation in proceedings against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities" in sub-paragraph (c) of article 5 of the Convention no. 158 of ILO listing the situations not considered as a valid reason for terminating the employment agreement, complaint made by the employee against their employer or attending to the legal processes is not recognized as a valid reason for the termination of employment agreement. Although this provision does not provide a special protection related to whistleblowing, it will ensure that the employees will be protected according to the general provisions in case of any dispute related to whistleblowing.

According to sub-paragraph c of article 18 of our Labor Law, it is not considered as a valid reason for terminating the employment agreement when the employee applies to the administrative or judicial authorities against the employer in order to pursue their rights and fulfill their liabilities arising from the legislation or the agreement or participates to a process initiated related to this matter. As this provision only regulates the application of the employee to the administrative and judicial authorities just to protect their rights arising from the legislation, it does not meet the whistleblowing concept completely. The employee, whose employment agreement is terminated within the scope of this article, will only be protected with the job security provisions in general. In case the employment agreement of an employee not falling within the scope of the job security is terminated, then the employee will be able to claim indemnification for malicious intentions. However, it should be discussed how protective these provisions will be if important matters concerning the public are disclosed. Mentioning once again that there is no detailed provision related to the matter in the Turkish law, it's seen that the regulations in the field of Occupational Health and Safety in our country provide special provisions related to the situations similar to the disclosure and notification of employee. With the Omnibus Bill published in the Official Gazette on April 23, 2015, it should be noted that a liability is imposed for the Occupational Health and Safety experts to first notify the employer and then the competent authorities in case the employer does not comply with the safety measures, as well as provisions for protecting the occupational safety expert due to this notification have been put into force. As this is a provision limited only with the occupational safety experts and occupational safety issues, it does not provide a sufficient protection for whistleblowing.

The most important effect and protection reason of whistleblowing for the whistleblowing employee is being exposed to discriminative and bad treatment, and even being fired; the effect for the employer is to encourage the employer for further complying with the legislation and ethical rules.

Finally, if an agreement is concluded by and between the employee and the employer related to the confidentiality obligation during the term of the employment agreement, then the provisions of the agreement related to non-disclosure of the confidential information to the third parties will protect the employer, and the penal clauses set out in the agreement may be applied. It is also possible to protect the confidential information with these agreements even after the employment agreement is terminated or expired.

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.

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