Legal remedies and precaution
'Mobbing', a kind of psychological harassment, involves subjecting employees to harmful treatment or emotional pressure through various acts, such as unjust criticism, isolation, disrespect, humiliation, innuendo or intimidation. Mobbing affects the victim's psychological and physical health and can cause loss of concentration and self-confidence, and poor performance. In addition to creating unpleasant working relationships, including the breakdown of teamwork and communication, mobbing generally negatively impacts on overall productivity and can cause additional costs and legal issues for employers following a victim's resignation or dismissal.
The duty of employers to protect their employees arises from the employment contract - employers must ensure that their employees work in a safe and healthy environment. Such an environment must protect not only employees' physical integrity, but also their personal rights, honour and dignity. Therefore, employers are under a duty to protect their employees from mobbing, as it infringes employees' personal rights and adversely affects their psychological health.
As more cases of mobbing have been revealed in the labour market, the public, administrative authorities and the Turkish legislature have become increasingly aware of the issue. The prime minister recently issued Circular 2011/2, published in the Official Journal (dated March 19 2011), which aims to prevent mobbing in the workplace. In the circular, 'mobbing' is defined as:
"emotional abuse which manifests itself through various acts applied intentionally and systematically over a certain period of time, such as humiliating, abusing, intimidating, undervaluing, isolating the employee, or damaging his or her honour and dignity."
The circular charges employers with the duty to take all required measures to prevent their employees from being victims of mobbing. Moreover, various measures are enumerated to combat mobbing, such as the following:
- Complaints regarding mobbing will be carefully examined and concluded.
- A Mobbing Preventions Commission will be established.
- Seminars, training and informative meetings will be organised to increase mobbing awareness.
- Employees will be supported by psychologists via a telephone line established by the Ministry of Labour and Social Security.
Before the enactment of an explicit provision on mobbing in the Turkish legislation, the obligation to prevent mobbing was imposed on employers through:
- Article 332 of the Code of Obligations (818), which regulates in general the duty to protect employees;
- Article 2 of the Civil Code, on the principle of honesty;
- Article 5 of the Labour Law (4857), on the principle of equality; and
- Article 77 of the Labour Law, on the duty to ensure occupational health and safety.
Employers were thus responsible for:
- taking all necessary precautions in order to ensure occupational health and safety, which also extends to employees' psychological health;
- controlling whether employees acted in compliance with occupational health and safety measures; and
- informing employees of occupational risks, required measures, legal rights and duties.
The new Code of Obligations (6098), which will enter into force on July 1 2012, explicitly regulates employers' liability regarding mobbing for the first time under Article 417 (which replaces Article 332 of the Code of Obligations (818)). This article stipulates that an employer is responsible for:
- protecting and respecting the personality of the employee within the employment relationship;
- keeping order in the workplace in accordance with the principles of honesty; and
- taking measures to guarantee that employees do not encounter sexual or emotional abuse and protecting those who have encountered such abuse from further suffering.
Thus, the new code clearly imposes important duties on employers to protect their employees from mobbing.
Legal remedies and precautions
Employees whose employment contracts are terminated during the course of mobbing may take legal action against their employers. Depending on whether employees are subject to the job security provisions of the Labour Law, they may either instigate lawsuits for reinstatement to work or request bad-faith compensation in case of termination. By taking into account the provisions of the law, it is accepted that in case of mobbing, the employee may terminate his or her employment contract for just cause (under Article 24), as such acts will be considered immoral, dishonourable or malicious conduct. Likewise, it is also accepted that the employer may terminate the employment contract of employees who continuously carry out acts that are considered to be mobbing for just cause without any compensation or notice (under Article 25 of the law).
Where an employee's personal rights are infringed via mobbing, the employee may initiate a lawsuit under Article 25 of the Civil Code to protect his or her personal rights. In such lawsuits it is sufficient that the act unjustly harms or will harm the personal rights of the employee - that is, establishing the fault of the employer or any damage is not required. The employee may also submit complaints to the district office of the Labour and Social Security Ministry against the employer for the violation of Article 5 or Article 77 of the Labour Law. If the district office evaluates the complaint as just, fines will be imposed on the employer (under Articles 99 and 105 of the law). Likewise, if the mobbing is based on the victim's language, race, sex or similar reasons, employees may demand compensation of up to four months' wages plus other claims of which they have been deprived due to discriminatory acts of the employer.
In addition to these lawsuits, employees may initiate lawsuits to demand moral compensation under Article 58 and material compensation under Articles 49 and following of the Code of Obligations (6098). In order to initiate lawsuits for moral and material compensation:
- the act must be unlawful;
- moral or material damage must have been suffered;
- a causal relationship between the damage and the act must have been established; and
- the employer must have been at fault.
As the issue of mobbing has been raised in labour lawsuits, 'mobbing' has also been defined in disputes before the labour courts, in which it was stated that 'mobbing' includes "all acts, such as any kind of abuse, threat, violence or humiliation. suffered by employees systematically by the managers, workers at the same level, or subordinates at the workplace". In practice, the labour courts decide that the employer must respect the personal rights of the employee and award employees moral compensation, which currently does not constitute a considerable amount.
In light of this legal environment, employers must be more attentive in managing such behaviour in the workplace, as it not only creates a financial cost to the organisation, but also erodes its human resources. Employers should be aware of, and inform their employees and managers of, mobbing and acts that will be considered to be mobbing. Moreover, as employers are responsible for implementing the required measures and for providing the required supervision, employers should have systems in place for controlling and investigating the conduct of employees at all levels for timely action. Investigation may be performed by way of conducting satisfaction surveys at workplaces to determine whether there are instances of mobbing or risks of its occurrence. If mobbing or risks of mobbing are determined, employers should immediately take precautions at their workplaces, including:
- warning the person carrying out the mobbing;
- changing his or her location;
- terminating his or her employment contract; and
- changing the department or workplace of the victim, at his or her request.
For further information on this topic please contact Melek Onaran Yüksel or Katharina Cihan Akyürek at YükselKarkınKüçük by telephone (+90 212 318 05 05), fax (+90 212 318 05 06) or email ([email protected] or [email protected]).