In the employment relationship, which is a contractual relationship that imposes obligations on both parties, the primary performance obligation of the employee is the obligation to perform (work), while the primary performance obligation of the employer is the wage payment obligation.
Since the primary performance obligations are the primary matters to be fulfilled in the debt relationship; they are independent from the secondary obligations. Secondary obligations, on the other hand, are that provide benefits for the realization of the contract in accordance with its purpose and the fulfillment of the expected benefit from the performance, and even the protection of the personality/property of the other party to the contract.
Secondary obligations may arise from the law or from the terms of the contract signed between the parties or according to the conditions of the concrete event in accordance with the rules of good faith. For example, an employee must not disclose information that is commercially critical for the employer. Even if it is not regulated by the contract, the employee's behavior to the contrary may constitute a breach of the secondary obligation.
In case of breach of secondary obligations, it is accepted that the provisions of breach of contract may be executed considering the relationship of trust between the parties, equity and honesty rules. For example; obligations such as the obligation of the employee to provide information, the obligation of the employee not to compete, the obligation to refrain from enticement, the obligation to refrain from taking advantage and bribery are the main ones.
It is possible to evaluate the types of secondary obligations under two headings: secondary to performance and protection obligations:
1- When determining secondary obligations aiding performance; the purpose of the concrete relationship or debt relationship is considered. These include, for example, the obligations to preserve, explain, inform, account, prepare (preliminary work), provide and cooperate. At the same time, the employee's informing the current employer and requesting approval from the employer before working in another workplace can be considered as an auxiliary obligation to performance.
2- Protection obligations, on the other hand, aim to secure other interests of the employer other than the performance interest. These obligations can be subdivided into the following sub-headings: informing, observing and loyalty.
While evaluating orders and instructions regarding secondary obligations; the characteristics of each concrete case should be taken into account. The balance between the interests of the employer and the employee must be observed.
In practice, some of the other secondary obligations of the employee, which may frequently be the subject of disputes, are listed below as examples and some of the issues to be considered are tried to be explained:
- Employee's obligation to endure supervision and/or surveillance: During the execution of the work; also known as electronic surveillance; practices such as phone conversations, e-mail correspondence and whether the rules of internet use are respected / followed, video recording with the camera in order to ensure security; In the presence of reasons of lawfulness arising from the employer - that is, in cases where the employer has a superior interest worth protecting - it is possible to carry out supervision without the need for explicit consent - provided that it is appropriate for the purpose. In all likelihood, it will help to avoid possible disputes to include the employer's practices regarding such employer supervision/surveillance in the employment contract or workplace written procedures)
- Secondary obligations regarding the appearance and dress of the employee: It can be said that interventions by employers on the appearance, shaving, well-groomed appearance of workers are based on a legitimate and justifiable purpose depending on the circumstances of the concrete case, such as ensuring occupational health and safety, because the worker represents the company or works in jobs that may affect the prestige of the company, or in similar situations where food is produced or the hygiene of the restaurant is important.
- Secondary obligations relating to the private life of the employee: Based on the right of management, the employer does not have the opportunity to give orders and instructions to the employee regarding his/her behavior outside the workplace or his/her private life. As a matter of fact, the employer is not the moral watchdog of the employees working in the workplace. However, the employment contract may be terminated if the employee's lifestyle leads to illness or absenteeism or poor performance, if the employee comes to the workplace drunk, or if what he/she does and experiences in his/her private life disrupts the harmony and working order in the workplace. In addition, issues such as the employee's excessive indebtedness, the employee's involvement in crime by using the tools and equipment provided by the employer, or the employee's lack of care in emotional relationships can also be exemplified under this heading and disciplinary rules may be applied by the employer.
- Secondary obligations limiting the employee's expression of opinion: Recognizing that freedom of expression is a necessity for democratic societies, it is essential that pluralism, tolerance and openmindedness are accepted as a rule. However, it is important that the employee does not express excessive opinions within the enterprise and does not exceed the limit of criticism. Abusive criticism or insulting the other person, racism or hate speech are not protected by freedom of expression. An employee who enters into an employment relationship of his/her own free will may be expected to refrain from expressions that may cause serious damage to the employer or the workplace and disrupt the functioning of the workplace. Statements that jeopardize the harmony of working together with other employees and breach of the obligation to keep secrets will constitute a violation of the secondary obligations of the employee.
Against the employee who violates his/her secondary obligations, the employer will have the opportunity to file a lawsuit for compensation for the damage suffered. In addition, sanctions such as warning, valid (with compensation) termination of the employment contract or termination of the employment contract for just cause (without compensation), penal clause collective bargaining agreement or imposition of a fine in cases where it is regulated in the employment contract, as well as the prevention or termination of the violation of the obligation, especially in cases where the violation of the secondary obligation, especially the non-competition or confidentiality obligation, is likely to recur.
References;
Labour Law – Prof. Dr. Sarper Süzek – 23rd Edition, Beta Publications, 2023
Employee's Secondary Obligations – Dr. Lecturer Orhan Ersun Civan – Beta Publications, 2021
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.
