INTRODUCTION

Today, the use of social media is quite widespread, and accordingly, some posts shared by employees on social media platforms may constitute a reason for dismissal. In particular, sharing vacation photos on social media on a day when the employee is on sick leave, making statements on social media that may harm the employer, sharing photos that disrupt work discipline where the logo of the organization is visible from the workplace, or making political posts can be considered reasons for dismissal. In this article, the effect of the employees' use of social media on the employer's right to terminate the employment contract will be discussed in detail.

EMPLOYEES' USE OF SOCIAL MEDIA AS A GROUND FOR TERMINATION

A. Employer's Management Right in Employee's Use of Social Media

First of all, it should be noted that the employer may unilaterally make regulations based on the right of management in order to concretize the work envisaged in the employment contract or to set rules regarding working methods and order in the workplace. For example, the employer may prohibit the use of social media in the workplace during working hours, or may prepare directives with instructions on the use of social media outside the workplace for purposes such as avoiding posts that damage the reputation, threats, insults or false accusations, and protecting trade secrets.

As regulated in the Constitution, everyone has the right to protect and improve his/her spiritual existence (Article 17 of the Constitution), the right to demand respect for his/her private life (Article 20 of the Constitution), the right to freedom of communication (Article 22 of the Constitution) and the right to express and disseminate his/her thoughts and opinions individually or collectively by word, writing, picture or other means (Article 26 of the Constitution). The employer's management authority is limited to the execution of the work and ensuring the order and safety of the workplace, and the fundamental rights and freedoms of the employee must be protected in the workplace.

When the decision of the 9th Civil Chamber of the Court of Cassation dated 26.11.2018 and numbered 2018/2116E. and 2018/21381 K. is examined, it should be noted that it will not be possible to talk about a valid reason for the posts that will be taken within the scope of freedom of thought. In the aforementioned decision, the employee who posted on social media only within the scope of freedom of thought, which did not damage the reputation of the employer and the workplace and did not cause any negativity in the workplace, was justified.

B. Employer's Termination Right in Employee's Use of Social Media

With the widespread use of social media, the use of social media by the employer as a reason for termination of the employment contract by the employee is increasing today. Shares, likes or comments made on social media platforms can be shown as a reason for termination, depending on the characteristics of the concrete case. In addition, it is determined that the intensive use of social media that affects the employee's work performance at the workplace and during working hours is also accepted by the Court of Cassation as a valid reason (with compensation) for termination.

The right of termination may be based on one of the justified reasons regulated in Article 25 of the Labor Law. At the same time, termination may also be made based on valid reasons in accordance with Article 18 of the Labor Law for employees covered by job security.

In the exercise of the employer's right of termination due to social media posts, first of all, whether there is any restriction within the scope of the right of management, and then the legality of the employer's access to the social media uses that the employer will claim as a reason for termination and whether the post in question will constitute just cause termination should be examined in detail. At this point, it is important to note that the number of interlocutors, i.e. who has access to the social media use that constitutes a reason for termination (hidden account / open account) is important, for example, a post shared publicly and a post shared only in a small group (such as a WhatsApp group with other workers in the workplace) do not have the same impact on the employment relationship. The employer's access to these posts is also very important in terms of this distinction. At this point, it is clear that the employer's access to the posts made in public accounts through the employer's own account or through a social media account opened on behalf of the legal entity employer is not a confidential intervention. On the other hand, in the case of posts made in private accounts, the employer should not have made any secret interventions while accessing the social media posts of the employee. When the decisions of the Court of Cassation regarding WhatsApp messages are examined, it is seen that WhatsApp messages are predominantly accepted as confidential personal data.

a. Use of Information about the Employer or the Workplace

For example, if the employee damages the reputation of the employer by sharing a photo on his/her social media account, which is accessible to a large number of people, with distinctive elements such as the employer's logo, workplace, location information, etc., this may lead to the termination of the employment contract for justified or valid reasons.

b. Employee's uttering words or behaving in a manner that may affect honor and reputation

As it is known, pursuant to Article 25/II-(b) of the Labor Law No. 4857, "the employee's uttering words or behaving in a manner that may damage the honor and dignity of the employer or one of his/her family members, or making unfounded denunciations and allegations against the employer that are offensive to honor and dignity" are among the grounds for justified termination.

In the decision of the 9th Civil Chamber of the Court of Cassation dated 19.12.2016, the 9th Civil Chamber of the Court of Cassation concluded that the employee's Facebook post "God damn them" without specifying the person is an insult and the employer may terminate the employment contract for just cause.

In the decision of the 9th Civil Chamber of the Court of Cassation dated 27.11.2017, it was decided that the termination was based on just cause due to the fact that the employee's, who was working in the press sector, posts that exceeded the limit of criticism of the President and the government and reached the quality of insult, and that the aforementioned posts caused negativity in the workplace and the employer could not be expected to maintain the employment relationship.

c. Harassment by the Employee

Within the scope of subparagraph 25/II-d of the Labor Law No. 4857, in the decision of the 22nd Civil Chamber of the Court of Cassation dated 08.09.2014, within the scope of "the employee's taunting the employer or one of his family members or another employee of the employer", the employee's post on social media by pointing to another employee and saying "I will shoot him" was accepted as taunting and it was determined that the employer's termination was justified termination.

Within the scope of the decision of the 9th Civil Chamber of the Court of Cassation dated 31.03.2016 and numbered 2015/27643E. and 2016/7929K. "...It has been concluded that the employee's statement on the social media sharing site that "if men who cannot put two words together and make a sentence become managers, idiots who do not write a simple official letter become chiefs.. business life at [.] is ridiculous." is directed at the defendant employer, and that the plaintiff's post containing insult and taunting authorizes the employer to justify the termination.

d. Employee's Behavior Incompatible with Truthfulness and Loyalty

Pursuant to Article 25/II-(e) of the Labor Law No. 4857, the employer may terminate the employment contract for just cause if the employee's use of social media constitutes a violation of integrity and loyalty.

The employee's deliberate or negligent publication of production and business secrets, such as the prices of the products to be offered for sale on social media, is a behavior that may cause significant damage to the employer, and this behavior is also a violation of the employee's duty of loyalty.

Within the scope of the decision of the 9th Civil Chamber of the Court of Cassation dated 24.04.2017, it was accepted as a valid reason for the termination of the employment contract due to the comments made by the employee working in production against the company on the social media platform slowing down the work.

e. Social Media Posts Made by the Employee on Sick Leave

If the employees engage in behaviors that arouse suspicion that they are not actually sick with the posts they make on the days they are on sick leave, it may be possible to terminate the employment contract without compensation depending on the existence of "violation of the rules of morality and goodwill" within the scope of Article 25/2 of the Labor Law.

When the decision of the 9th Civil Chamber of the Court of Cassation dated 06.07.2017 and numbered 2016/17532E. and 2017/12196 K. is examined, it is seen that the Court of Cassation ruled that the termination is in accordance with the law by determining that "the plaintiff went to Giresun province during the period when he received a sickness report and shared photos of himself in holiday clothes on the beach there, this situation is clear evidence that the sickness report used is contrary to the truth, and the fact that the employee who reported that he was on sick leave went on vacation contrary to the report is contrary to integrity and loyalty".

In another decision of the 9th Civil Chamber of the Court of Cassation, for the employee who submitted a report to the workplace, attended his friend's wedding on the days he was on report and shared these images on his social media account, "In the file, besides the absenteeism records of the plaintiff, there is a report from the medical center dated 07.04.2015 and valid for this date. Again, in the defense letter dated 08.04.2015 regarding the absences of the plaintiff, it was stated that he requested leave, but the employer said that he was told to go get a report, we would not give leave, and therefore he did not come to work, and in the lawsuit petitions, it was declared that he did not come to work on 07.04.2015 due to his illness and his employment contract was terminated unfairly. Again, in the social media posts of the plaintiff in the file; In the conversation between the plaintiff and his friend under the images of the plaintiff attending his friend's wedding on 04.04.2015; it is understood that the plaintiff was told 'They did not give you permission, you do not need permission', and the plaintiff said 'I took care of that job', and upon the question 'Did your uncle the doctor take care of it?', the plaintiff said 'No, brother, I have an uncle, he is a prosecutor in Ankara'. As a result of the evaluation of the social media correspondence and the defense given by the plaintiff's employer together, it has been concluded that the report dated 07.04.2015 is not healthy and cannot be accepted as valid. The court's decision to accept the severance and notice indemnity instead of rejecting it with an erroneous evaluation required a reversal." and partial acceptance of the lawsuit was decided.

CONCLUSION

In order for the employee's use of social media to constitute a reason for termination, each concrete case should be evaluated separately, separate evaluations should be made within the scope of the nature of the social media network used by the employee, the audience reached by the posts should be determined, a detailed examination should be made as to whether the content of the post constitutes just cause, and access to the said posts should be provided without violating the fundamental rights and freedoms of the employee. In summary, the employer may exercise the right of termination due to the employee's use of social media by observing the principle of proportionality.

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.