The concept of whistleblowing, which we have heard many times recently, has become the subject of legal regulations and in this sense has also become the subject of internal policy and practices of companies. European Union referred to the concept of whistleblowing in the Directive dated 8 June 2016 and practices regarding whistleblowing are being implemented differently in the Member States. In Turkey, although whistleblowing is not solely regulated by law, the concept of whistleblowing has become very relevant for companies which have connection with abroad. We have begun to take care of this issue in the context of the general provisions of Turkish law. We will try to give information about whistleblowing regulation and practices and to determine the situation in Turkish law with this article.
The whistleblowing concept which originated in seventh-century England which developed civil responsibility culture in order to protect public interest, was used in the 1980s, "whistleblowing" was promoted (in terms of military units) in the United States in order to prevent corruption in the military industry. The use of whistleblowing, which was regulated in Anglo-Saxon and American law, subsequently entered into the regulations of many countries around the world and various protections were ensured to the denouncer.
The concept of whistleblowing has become more relevant with "Directive (EU) Of The European Parliament And Of The Council of 8 June 2016 On The Protection of Undisclosed Know-How And Business Information (Trade Secrets) Against Their Unlawful Acquisition, Use And Disclosure". The concept of 'whistleblowing', is mentioned in recital No. 20 of this Directive, which is based on 'freedom of expression' and on the Article 10 of the European Convention on Human Rights. The case of Heinisch, in which the European Court of Human Rights concretized the right to freedom of expression and whistleblowing against the employer, was adopted as one of the most important steps in this sense.
The EU Directive's recital No: 20 mentions whistleblowing: "The measures, procedures and remedies provided for in this Directive should not restrict whistleblowing activity. Therefore, the protection of trade secrets should not extend to cases in which disclosure of a trade secret serves the public interest, insofar as directly relevant misconduct, wrongdoing or illegal activity is revealed...". We could say that there is a regulation referring to whistleblowing, which Member States can transfer to their national laws with regard to EU law. Although EU Member States are still debating whether the concept should be legislated, only a few Member States have taken steps in this context. According to OECD data, the countries that have adopted whistleblowing regulations in their national legislation are Australia, Belgium, Canada, Hungary, Japan, Korea, The Netherlands, New Zealand, United Kingdom, United States, Jamaica, India, and Ireland. Optionally, companies in France follow a whistleblowing procedure and a draft about whistleblowing regulation is in Switzerland still on the agenda. In Germany, the use of constitutional rights by an employee would not affect the secondary duties of the employment contract and although the employee should protect the interests of the employer, "whistleblowing" would be considered under "freedom of expression" concept and could not be taken from the employee, are discussed. Nevertheless, there is no specific provision in the law for whistleblowing in Germany.
Whistleblowing concept which would be used to secure the health of patients in hospitals or to protect the economic interests of customers paying to banks with trust or to protect public interests through further business and as an internal and external "ethical review" mechanism; is not only codified in labor law. However, behavior against public interest, unethical act or wrongful acts which may occur in business, hospitals or banks could be known only by employees in the workplace. For this reason, the EU Directive refers to whistleblowing concept in the part of the "protection of trade secrets", while also mean to the relevant people who can acquaint these secrets, directors, board members, participate in the working organization or business.
The Corporate Governance Code, which entered into force in Germany in February 2017, clarifies the obligation of the Board and the Supervisory Board members to ensure the company's continued existence and obey the law, in line with the principles of the social market economy for public companies. Thus whistleblowing, although not mentioned in the Code as a term, is nevertheless accepted as a legal obligation concept.
The term was comprised of "whistle" and "blow" in English, derived from the whistle of English policemen, in order to take attention of public attention. In articles, penned on the subject in Turkey "whistleblowing" is the term used for the worker's whistleblowing. Whistleblowing could be defined as the disclosure and notification of unlawful and / or unethical behavior, such as corruption, trading in influence, bribery, discrimination, sexual harassment or theft, by employees in an organization. This organization can also be in public sector or a private company. Whistleblowing, which can be described as a civil virtue act because it benefits the interests of the organization and public, separates itself from the definitions of disclosure of confidential information of company, talebearing and betraying.
Despite the fact that there is no legal obligation and regulation, it is possible to name the phases of the whistleblowing process as follows: to apply to the executive/superior, to get in contact with top executives if the manager does not react to the problem, to communicate with the ethic department within the company if there is one(internal audit), if there is still no positive result, inform the authorities outside the organization about the illegality and to announce to the public illegality as a last resort.
The name of employee ,who is whistleblower, will be anonym or not, the way of notice and which components should have had, security measures that the employer is obliged to take for the denouncers and their personal data, protection of the employee due to reprisal, mistreatment, dismission and measures in order to ensure workplace peace, to whom illegality and unethical behaviors that the worker has seen in the company through an internal audit method would notify, rights of denouncers and person who is denounced, the time for action by the employer or the related council against the notice and the necessary measures to be taken and the right of the worker to apply for legal services if these are not done, are regulated in legal regulations and practices.
Even though there is no specific regulation regarding whistleblowing in Turkish Law , the Civil Law Convention on Corruption, 1999 (No. 174), agreed between European Council members, was signed by Turkey on 27.09.2001 and adopted on 01.01.2004 into national law. According to Article 5 of The Termination of Employment Convention of ILO, 1982 (No. 158), which was adopted into national law by Turkey in 1994, the circumstances which are "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" cannot be considered as valid reasons for termination.
Regarding whistleblowing concept single regulation in Turkey has been added to the "Law on Occupational Health and Safety" with "Law on the Amendment of Certain Laws and Decree Laws and Law on Occupational Health and Safety", which has provisions about obligation of notification of Occupational Health and Safety experts, to the employer firstly and then to the competent authority of the Ministry if the employer does not comply with the safety precautions, provisions for the protection of the work safety expert because of this notification.
This issue should be evaluated in the framework of international agreements, general provisions and case law, because there is no special provision for the protection of workers with regard to whistleblowing in Turkish Law. The duty of loyalty and care of the employee and protection of rightful interests of the employer are regulated in the Turkish Code of Obligations Art. 396. However, as part of duty of loyalty, employee should notify the employer about situations which has unlawfulness, damage the employer's financial well-being and reputation. However, there is no exact written regulation obliging workers to notify abuse or unlawful behavior. In the case of whistleblowing, whether this situation will constitute a contradiction to the loyalty liability which is one of the secondary obligations, and that the worker must make this notification absolutely. Although it is desired to provide legal guarantee for labor and notify for the public interest, it should be accepted that the obligation of the workers to breach loyalty, disclosure of employee should be accepted as not constitute to breach of duty of loyalty in compliance with certain conditions and the principle of proportionality.
The whistleblowing does not address unfounded allegations for violation of the principle of "good faith", otherwise the employer would have the right to terminate the employment contract, in accordance with. Art. 25 / II-b in Labor Law "unfounded accusation and allegations against the employer, which would violate his honor and dignity" .
On the other hand, person who did not notify the crime in the context of the crime of misprision which is regulated in the Article 278 Turkish Penal Code will be punished. Therefore, if the action has quality as a crime, it can be said that it is a legal obligation for the person to report the crime to the competent authorities. The fact that the person is aware of the criminal act as a party of the employment contract or in another way, does not effect on this obligation.
To summarize, although there is no clear legal regulation in Turkey, there is no obstacle to make rules to be applied intercorporate for whistleblowing, in fact it is obvious that legal regulation regarding whistleblowing for practice is a necessity. All white and blue-collar employees should be well informed about, why whistleblowing is needed, which benefits are intended and how the process will be operated. Wrongful and unethical behavior and the sanctions for not notifying this kind of behavior or acts should be determined in the rules. It should be also clearly stated, that whistleblowing is an obligation in addition to duty of loyalty and the failure to fulfill this obligation may be subject to a sanction, even though employees solely fulfill the obligation of transaction of business deriving from the employment agreement. Ensuring, that the name of the whistleblower will remain anonym, can be a simple and effective measure. The provision and implementation of whistleblowing in intercorporate regulations will help to provide benefits to both public and private companies and create an ethical-institutional working environment while ensuring notification of unlawful behavior within the company.
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.