Turkey: Mobbing Under Turkish Law Pursuant To The Jurisprudence Of The Court Of Cassation And Turkish Code Of Obligations No. 6098

Under Turkish Law, mobbing is a recent concept defined and developed by the jurisprudence of the Court of Cassation. Emotional abuse (mobbing) consists of all types of ill treatment, threats, violence, humiliation, etc., conducted and repeated systematically by other employees, or by the employer to an employee¹. Besides being a violation of personal rights, mobbing may also mean a violation of liabilities of the employer in accordance with the labor law.

An article entitled "Emotional Abuse in the Workplace According to Turkish Labor Law" that examines mobbing was published in our Newsletter of January, 2010. The present article will assess this notion in accordance with the provisions of new Turkish Code of Obligations No. 6098 ("TCO") and the Court of Cassation's recent jurisprudence.

Explicit Provision Adopted by the TCO

Abolished Code of Obligations No. 818 did not contain any specific provision regarding mobbing. However, in practice, claims against mobbing were based on Art. 332 of the Code setting forth the protection of the employee, and abolished Art. 77² of the Labor Code ("Labor Code") that set forth health and safety matters concerning employees.

An explicit provision regarding mobbing is adopted through the TCO. Thus, "the employer is liable to protect and respect the personal safety of the employee, and assure a workplace environment with respect to the principles of fairness, especially to take necessary measures for the employees not to be sexually or emotionally assaulted, and to prevent further damages to those who had been assaulted." With respect to the third paragraph of the same provision, "compensation of the damages arising from death, violation of physical integrity or personal rights of the employees as a result of breach of contract, law or aforementioned provisions is subject to the provisions regarding liability arising from breach of contract."

Accordingly, the TCO adopted specific grounds in order to claim mobbing and, therefore, the employer shall respect and protect the personal rights of its employees. Furthermore, an employee's right to claim compensation by reason of violation of liabilities arising from the labor law in addition to the violation of personal rights, is explicitly regulated.

Elements of Mobbing in Light of the Court of Cassation's Jurisprudence

The Court of Cassation rendered several decisions regarding mobbing subsequent to the entry into force of the TCO, and there are three significant decisions in which the Court has stated certain principles regarding mobbing.

General Principles

The first principle is the decision of the General Assembly of Civil Chambers of the Court of Cassation dated 25.09.2013³. This decision concerns a lawyer who had been working in the legal department of a bank for 14 years; after her assignments to 30 different cities within nine months, she claimed moral and material compensation by reason of mobbing.

Both the decisions of the 9^th Civil Chamber⁴ and the General Assembly firstly state general explanations and principles concerning mobbing. The Chamber defines the concept of mobbing by referring to the Federal Labor Court of Germany as systematic hostility, willfully causing difficulties, ill-treatment among the employees or by superiors, especially the employer. On the other hand, the General Assembly of Civil Chambers defines the concept of mobbing by referring to the doctrine as all types of ill-treatment, threats, and violence applied and repeated systematically by the other employees to an employee. In this respect, in order for treatment to be considered as mobbing, an employee should have been targeted, and the treatment should have been applied systematically and repeatedly for a certain period of time.

While applying the principles to the case at hand, both the 9^th Civil Chamber and the General Assembly of Civil Chambers require the employer to prove two issues. Accordingly, first of all, the employer shall prove that the assignment in question has a general application and that other employees have been subjected to the same treatment; and, secondly, it satisfies a concrete necessity. As a result, the General Assembly of Civil Chambers ruled that the practices against the lawyer, as claimed, constitutes mobbing, and the employer acted with the intent to cause the employee's retirement or demotion and, therefore, reversed the judgment of the district court.

In addition, the 22^nd Civil Chamber of Court of Cassation states another principle in its decision dated 27.12.2013⁵ that unjust treatment towards personal right is sufficient for mobbing, and substantial violation of the relevant right is not required.

With respect to these decisions, in order for a practice to be considered as mobbing, the Court of Cassations requires that the employee was targeted, the treatment was repeated systematically, and constitutes an unjust practice to the personal rights of the employee.

Difficulties Regarding Evidence

A substantial problem in practice is the difficulties regarding evidence of the mobbing. Most of the time, it is impossible to prove mobbing by conclusive evidence, due to the nature of the practice. Therefore, the Court of Cassation states in several decisions that the employee may prove the practices concerning mobbing without presenting conclusive evidence, and determines the main principles in this respect.

According to the aforementioned decision dated 25.09.2013 of the General Assembly of Civil Chambers⁶, it is sufficient to present consistent and strong indications regarding the claimed practices. By considering the ordinary flow of life, the indications shall be assessed and, by virtue of this assessment, if it is concluded that mobbing has most probably occurred, the case shall be deemed to be proven.

The decision dated 21.02.2014 of the 22^nd Civil Chamber of the Court of Cassation⁷ sets forth certain stipulations regarding the evidencing process. In this decision, the Chamber, in accordance with the aforementioned decision, states that conclusive evidence is not required, and the personal persuasion of the judge is sufficient. In addition, considering the difficulties regarding the evidencing of mobbing practices, the principle of interpretation in favor of the employee shall be applied in the case of doubt. In the case at hand, the witness statements affirming and completing each other, several conclusive medical reports that are in accordance with each other, and the witness statements are deemed to be sufficient by the Chamber to prove that the personal rights of the employee have been violated, and that the treatment constitutes mobbing.

Conclusion

With the TCO, the obligation of the employer to protect and respect the personal rights of the employee is explicitly regulated, and a clear provision concerning mobbing has been adopted. Previously, mobbing was illegal under Turkish law, however; it was the obligation of the employer to protect its employees against mobbing. In this respect, for the first time under Turkish Law, an explicit provision has been adopted in accordance with the principles of international law and the requirements of professional conduct.

Furthermore, the concept of mobbing is developed by the practice of the courts, and the main principles are set forth. Accordingly, in order for a practice to be considered as mobbing, the employee shall have been targeted, and the treatment shall have been repeated systematically. In addition, unjust practices concerning the personal rights of the employee are sufficient, and a major violation is not required. Lastly, considering the difficulties in proving mobbing, and the principle on interpretation in favor of the employee, it is sufficient to present indications showing that mobbing has most likely occurred.

Footnotes

1. TINAZ, Pınar/BAYRAM Fuat/ERGİN Hediye, Çalışma Psikolojisi ve Hukuki Boyutlarıyla İşyerinde Psikolojik Taciz (Mobbing)'den naklen Süzek, İş Güvenliği Hukuku, Beta Yayınları, İstanbul, 2008, p.7.

2. The provision in question is abolished by Art. 37/ç of Law No. 6331 dated 20.6.2012 published in the Official Gazette dated 30.6.2012 and numbered 28339. The article entered into force six months after its publication in the Official Gazette.

3. The decision of the General Assembly of Civil Chambers of Court of Cassation dated 25.09.2013, numbered E. 2012/9-1925, K. 2013/1407.

4. The decision of the 9th Civil Chamber of Court of Cassation dated 28.02.2012, numbered E. 2009/30916, K. 2012/6093.

5. The decision of the 22nd Civil Chamber of Court of Cassation dated 27.12.2013, numbered E. 2013/693, K. 2013/30811.

6. See footnote 3; the decision of the General Assembly of the Civil Chambers of Court of Cassation dated 25.09.2013, numbered E. 2012/9-1925, K. 2013/1407.

7. The decision of the 22nd Civil Chamber of Court of Cassation dated 21.02.2014, numbered E. 2014/2157, K. 2014/3434.

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