ABSTRACT
With recent social developments, labor law, which is a relatively new branch of law, is rapidly changing1. The internet and its extension social media, which entered our lives towards the end of the 20th century and became globalized in the 21st century, is undoubtedly one of the leading social developments. Today, social media plays an essential role in many areas of business life, including recruitment processes. However, examples of disputes arising from the use of social media during working hours and outside working hours is increasing daily. In this study, labor law, employment contracts, situations where the employer can unilaterally terminate the employment contract, the worker’s termination of employment due to the use and share of social media, in particular, will be examined within the scope of the article of Labor Law that regulates the authority to terminate employment due to violation of moral and goodwill rules and within the scope of the article regulating freedom of expression. The decisions of the Supreme Court and the grounds given for such a decision will also be examined.
Social media sites and applications are being used more and more by people every day, and the effects of this are reflected in all areas of life including business life.
I. INTRODUCTION
Social media sites and applications are being used more and more by people every day, and the effects of this are reflected in all areas of life including business life. In addition to the impact the personal use of social media inside and outside the workplace has on the business relationship,2 what a worker shares on social media about about the workplace and / or employer can also lead to termination of the employment contract. The number of such disputes is increasing daily and examples can be found in court decisions.
While the use of social media during working hours is comes under the employment or general service contract, what a worker shares on social media about the employer and/or the workplace come under Article 25 / II-b and 25 / ll-d. However, discussion continues about whether an employer can justify termination of an employment contract, whether the shares in question can be evaluated within the limits of freedom of thought and expression, which are protected by the 25th and 26th Articles of the Constitution, and how the private life and political views of a worker affect their business relationship.
I I . SOCIAL MEDIA AND LABOUR LAW
A. The Relationship between Labor Law and Employment Contract in General
Business law is the branch of law that determines the relations between workers and employers, rights and debts, and regulates the rules regarding the workplace. As per Article 8/1 of the Labor contract No. 4857 Labor Law, "the contract that one party undertakes to work as a subordinate and the other to undertake payment of wages". Article 393 of the Turkish Code of Obligations3 No. 6098, which constitutes the source of labor laws, defines the contract as an agreement "in which the worker undertakes to work for a certain or unspecified period depending on the employer and the employer pays him according to time or work done". As can be understood from the definitions, the employment contract consists of doing business and, paying wages and adherencen. The job at issue here includes all kinds of work corried out by a real person that can be evaluated economically4. It is a contract that creates a professional relationship between the parties, imposes a mutual debt, and creates a permanent debt relationship in terms of the nature of the employment contract. As with any private law contract, this debt relationship can end for reasons of termination or non-termination.
The basis of labor law is the need to regulate and protect the legal status of workers5. Indeed, one of the most prominent focal points of labor law is the need to eliminate the power imbalance between the worker and the employer, to whom the worker is economically dependent. As a reflection of this, it is clear in Labor Law No. 4857 and in the application, where the employer must apply for the immediate termination of an employment contract in such a way as to provide maximum protection to the worker.
1. Termination of Employment Contract by the Employer
Cases where employment contracts end through the unilateral declaration of the employer are regulated in various articles in Labor Law. As stated in Article 17 of Labor Law, an employer terminating an employment contract without any justified reason must inform the other party prior to termination of the indefinite term nature of the employment contract. In the same Article, for the termination of employment contracts (i) for a worker whose job lasted less than six months two weeks after notification was made of termination, (ii) for a worker whose job lasted from six months to one and a half years four weeks after notification of termination, (iii) for a worker whose job lasted from one and a half to three years six weeks after notification of termination, (iv) for a worker whose job lasted more than three years eight weeks after notification of termination. The specified periods are also valid where a worker wishes to terminate their employment. However, as regards the implementation of the article in question, employers who terminate indefinite-term employment contracts for workers with thirty or more workers, as laid down in Article 18 of the Labor Code, in workplaces employing thirty or more workers; it must be based on a valid reason arising from the qualification or behavior of workers or the requirements of the enterprise, workplace or job.
As well as regulations regarding unjust termination of the employment contract in Article 17 of Labor Law, Article 25 contains regulations regarding just cause of termination of an employment contract. This Article justifies the right to terminate an employment contract under four different headings: (i) health reasons, (ii) situations that do not comply with the rules of ethics and good faith, and the like, (iii) compelling reasons, and (iv) if the worker is detained or arrested. The right to termination should be used within six working days starting from the day when the employer learned of an employee’s behavior contrary to the rules of ethics and goodwill and the like, and within a year after the actual act. These periods also apply to a worker who wishes to exercise his/her right to terminate the contract for justified reasons, based on situations that do not comply with the rules of ethics and goodwill and the like6.
2. Termination of the Employment Contract for Good Reason within the Framework of Labor Law No. 4857
Termination of an employment contract for good reason is conceptually possible in the case of a justified reason. This means that one of the parties may declares that the contract has been broken and immediately terminate it. These justified reasons are regulated in the 24th and 25th Articles of Labor Law, in terms of workers and employers. These reasons are classified as (i) health reasons, (ii) behavior against ethical and goodwill rules, and (iii) compelling reasons. In the classification made in Labor Law, health reasons and compelling reasons are relatively easy to understand. However, since "violation of ethics and goodwill rules" is a subjective term, it is frequently discussed in doctrine and practice. Although the behaviors listed in Article 25 of the Labor Law and the conditions expected to occur as a result of the behavior in order to cause dissolution are clear, they did not set a law-making restriction method for the termination of the employment contract and preferred the sampling method. Accordingly, apart from the behaviors stated in Aritcle 25 of Labor Law, there are cases that constitute a violation of the rules of ethics and goodwill in which the employer is not expected to employ a worker. In addition, Article 70 of the Trade Unions and Collective Bargaining Law allows termination of employment contracts for justified reasons, for example, if they are locked out by illegal strikes7.
3. Termination of Employment Due to Violations of Ethics and Goodwill Rules
Among the situations that do not comply with the rules of ethics and goodwill and the like and therefore give rise to the right of immediate termination in Article 25 of Labor Law are: (a) the employee asserts or misleads the employer with inaccurate information or words, (b) the employee uses words or behavior that would affect the honor of the employer or one of their family members, or makes false or undignified notices and declarations about the employer, (c) the employee annoys the employer or one of his family members or another of the employer’s employees by arriving at the workplace drunk or under the influence of drugs, or by using these substances in the workplace; and (d) the employee misuses the employer’s trust. Also included are behaviors that do not comply with honesty and commitment, such as theft or revealing the employer’s secrets. Accordingly, it is necessary to examine whether the behavior being cited as the reason for immediate termination of an employment contract can be evaluated within this scope.
B. Social Media in the Perspective of Business Law
1. Evaluation of Social Media Usage and Sharing in Terms of Labor Law
Social media is a common term for online tools, websites, and social networks through which users interact, often sharing information and ideas8. While media in name, the features of social media differ to those of traditional media. Social media is unique in that any individual can create content, make comments, and contribute on social media.
The impact of social media on labor law is evident at the recruitment stage, before a business relationship is established. In parallel with the widespread use of social media tools, an employer can access a lot of information about a potential employee, such that information regarding a candidate that can be found on social media has become a key factor in employers' decision making. One of the reasons employers carry out social media research on candidates is that it is a fast, low-cost opportunity for finding publicly published information. Employers' use of social media as a tool in the recruitment processes is a result of the times in which we live9. The adherence nature of the business relationship has led to the need to consider several problems and consequences that may arise as a result of the employee using social media in business life. It is undeniable that in the face of today's developing technology, the use of the internet in business life is a essential. However, in parallel with this use, the increase in workers’ use of social media now impacts on employment contract termination. Under the employment contract, employees are required to fulfill their debt to work diligently and within the scope of obedience, and to avoid actions that are against the debt of loyalty. Any excessive use of social media or use that violates workplace commitments such as use of social media during work time may constitute a violation of the duty of loyalty and result in sanctions including the possibility of termination of the employment contract.
2. Evaluation of Social Media Usage and Sharing within the Scope of Freedom of Thought and Expression
Many things that we do in our daily lives have become a part of the internet and social media. The sharing of thoughts and expressions on social media has increased in direct proportion to the increasing number of social networking sites and users. In this context, it has become inevitable that some posts on social media negatively affect the relationship between the employee and the employer. Freedom of expression can be defined as the ability of people to access thoughts and news freely, to obtain ideas, to freely transfer and defend their ideas and opinions without being condemned. However, although it is guaranteed by many laws and contracts such as the Constitution and the ECHR, freedom of expression should not be considered limitless10. It should not mean that a worker must give up their freedom of expression in order to adequaltely perform their work. Therefore, it can be concluded that any worker has the freedom of expression, under certain limitations and conditions, and the employer is obliged to accept that freedom11. A worker is able to use their freedom of expression in a way that does not prevent him from fulfilling his obligation at work. A worker’s debt of loyalty to the employer constitutes a limit to their freedom of expression.
Since the obligation to work involves fulfilling duties personally and carefully, inadequate work performance cannot be based on freedom of expression. In this context, since freedom of expression cannot be used to legitimate a violation of an employee’s obligation to work, the employment contract of any employee who acts against this obligation may be terminated for a cause in accordance with Article 25/II of the Labor Law. A worker’s personal social media use, sharing of company information on social media, making false or undignified statements about their employer or other workers does not come within the scope of freedom of expression12. The loyalty obligation, which is regulated positively in Article 396 of the Turkish Code of Obligations, is to protect the employer, to protect the interests of the employer and their commercial and economic reputation, and employees have a duty to avoid any action that may cause damage to the employers in such areas13. In accordance with Article 25/2 of Labor Law, any behavior contrary to this duty is considered a justifiable and valid reason for termination.
Although the use of social media and posting on social media can be evaluated within the framework of the freedom of thought and expression protected by the Constitution, it is obligatory to interpret the limits of this freedom within the scope of the contractual obligations of the employer and the employer's authority14. While working for an employer under an employment contract, it has been observed that employees excessively use social media networks for personal purposes during working hours causing loss of productivity and illegal internet usage can put an employer at risk of disclosure of workplace secrets15.
C. The Approach of the Supreme Court
1. The Decisions of the Supreme Court Legal Offices on Social Media Sharings Evaluated to be Within the Limits of "General Criticism and Freedom of Expression"
In a decision of the 9th Civil Chamber of the Supreme Court dated 07.10.2015, the plaintiff's employment contract was terminated by the employer, after agreement was reached in negotiations of the collective labor agreement, upon learning of the plaintiff’s Facebook account posting “SOLD FOR 20 Turkish Lira”16. It was argued that the statement was defamatory and that the employment contract was terminated for justified reason pursuant to Article 25/II-b of the Labor Law No. 485716. The Chamber, on the other hand, decided that “the plaintiff's alleged statements after compromise are statements that do not exceed the limit of criticism, do not qualify for termination, the termination is not based on the justified and valid reason.”17 In a decision of the 9th Civil Chamber of the Court of Cassation dated 23.05.2016, a worker’s work contract was terminated by the employer based on Article 25/II-d of Labor Law. The employer and other employees were bullied by the employee’s Facebook posting “Except from me, there is no DECENT HUMAN in this store which is located in Umraniye, everybody was slippery, everybody was cringing. There will be the other world of it, I will have both sides, I HOPE ...”. In the case, which was replaced by severance and notice pay, the local court said that “the actions of the plaintiff are not considered within the scope of Article 25 of the Constitution, where he writes articles on social media site criticising some of the negative aspects of the workplace, the wage rates and negotiations, he does not target any person, any manager or employee in those articles. It is considered freedom of expression as guaranteed in Articles 26 and 26, and it is not considered to be weight enough to break the contract for just cause, it should be accepted as justification of termination with a valid reason.”. The decision was upheld by the Supreme Court based on “In the posts made by the worker from his own social networking site, it is stated that the employer is not party to direct sharing, that the worker limited his sharing to his friends on his social networking site. In this way, it is right for him to say general words about everyone including himself, and that it is approriate to be evaluated within the scope of freedom of thought.”18From this aspect, however, it is controversial whether it can be considered within the scope of freedom of expression, given the nature of the public domain sharing of comments concerning the employer's interests19.
2. Decisions on Social Media Posting that the Supreme Court of Appeals Considered as Sharing Exceeding "General Criticism and Freedom of Expression" Limits
In a decision dated 17.02.2016, the 7th Civil Chamber of the Supreme Court evaluated the following employee’s personal Facebook post “To the attention of all patients or patient relatives who will come to the hospital! It is recommended to bring life vests, Zodiac boots, boots, raincoats, snorkels, lifebuoy, or if you want to turn your business into pleasure, it is recommended to bring swimsuit when you come.”, as “it is necessary to determine what is humiliating and insulting to the employer and cannot be regarded as humorous so that the defendant's action is considered to be incompatible with truth and honesty regarding the employer, and there is no violation of the law in terminating the employment contract.”even though it was true that there were sometimes flooding events in the workplace where the employee works as a cleaning worker20.
In an incident subject to the decision of the 22nd Civil Chamber of the Supreme Court dated 01.11.2017, an employment contract was terminated on the grounds that the plaintiff (the employee) posted on his social media account that he was satisfied with the fire at work and that the issue damaged the trust relationship. The employee applied to the court arguing that he did not share the post. The trial court decided not to accept the case “on the grounds that the incident was not based on legitimate proof, and that the termination was not based on a valid reason, and that the defendant employer did not fulfill the legal proof burden.” In the appeal, the Regional Court of Justice decided to rescind the decision of the trail court “on the grounds that the issue was against honesty and commitment and that this was termination with a valid reason”. In the appeal investigation, the relevant department judged that “firstly, it should be determined whether the given share was made by the plaintiff or not.”21. As a matter of fact, in a decision dated 26.09.2018, the 22nd Civil Chamber of the Supreme Court stated that an expert examination should be made for determining whether the said share was made by the plaintiff (the employee whose employment contract was terminated due to the sharing he made)22. and in a decision dated 08.09.2014 found it sufficient23.
III. CONCLUSION
It is clear that social media is one of the most common and effective tools for people to express their thoughts. Expressing personal thoughts in any way means accepting that they may say things that others may not like. The limits of freedom of thought and expression, which are under the protection with the Constitution, are drawn in the Constitution and other laws in order to protect social order. These restrictions are included in Articles 24/II-b and 25/II-b of Labor Law, which says that if a worker or employer utters words in a way that affects the honor of one of the opposite parties or one of his or her family members, the opposite party is allowed to terminate the employment contract. Expressing words or behaving in a way that affects honor can be achieved through social media as well as other media. In fact, it would not be wrong to say that any actions going beyond the limits of freedom of thought and expression occuring through social media make little difference to the approach applied under general law principles. This is because, the use of social media is no different from expression thoughts on television or radio or by writing in newspapers, other than it being easier to access. Each dispute should be evaluated and resolved under its particular circumstances. As a matter of fact, the Supreme Court decisions shared above support this view.
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FOOTNOTE
1 A. Murat Demircioğlu/Tankut Centel/Hasan Ali Kaplan, Iş Hukuku, 20th Edition, Beta, İstanbul 2019, p. 1.
2 Yeliz Bozkurt Gümrükçüoğlu, “The effects of utilization of social media by workers on labor law. Press Academia Procedia (PAP)”, 2018, S.7, pp. 372-375 http://doi.org/10.17261/ Pressacademia.2018.919 (Access Date:18.02.2020)
3 Official Gazette: 11.01.2011 dated, Numbered: 27836.
4 Sarper Süzek, İş Hukuku, Beta, 16th Edition, Ankara 2018, p. 231.
5 Demircioğlu / Centel / Kaplan, p. 5.
6 Numbered: 4857 turkish labor law, Article 26
7 Demircioğlu/Centel/Kaplan, İş hukuku, p.184.
8 İdil Sayımer, Sanal Ortamda Halka İlişkiler, Beta, İstanbul 2008, p.123.
9 Utku Dönmez/Bilge Okutan, Yargıtay Kararları Işığında Sosyal Medya ve İş İlişkisi, Legal, İstanbul 2019, p.5
10 Erhan Tanju, AİHM Kararları Işığında İfade ve Basın Özgürlüğü, Seçkin, Ankara, 2012, p. 168; Özcan Özbey, “Avrupa İnsan Hakları Sözleşmesi Işığında İfade Özgürlüğü Kısıtlamaları”, TBB Dergisi, 2013 (106). p. 47 vd. http://tbbdergisi.barobirlik. org.tr/m2013-106-1269 (Access Date: 19.02.2020).
11 Sezgi Öktem Songu, “Anayasal Bir Temel Hak Olarak İfade Özgürlüğünün İşçi Açısından İşyerindeki Yansımaları”, https:// dergipark.org.tr/tr/download/article-file/756539 (Access Date: 19.02.2020).
12 Gülnur Erdoğan, İşyerinde İfade Özgürlüğü (Avrupa İnsan Hakları Sözleşmesi Temelinde), Legal, 1th Edition, Ankara 2017, p. 237.
13 Kübra Deniz Çelik, “Sosyal Medya Kullanımının İş Sözleşmesine Etkisi” https://blog.lexpera.com.tr/sosyal-medya-kullaniminin-is-sozlesmesine-etkisi/ (Access Date: 19.02.2020).
14 Dönmez/Okutan, Yargıtay Kararları Işığında Sosyal Medya ve İş İlişkisi, p. 43.
15 Supreme Court 9. CC, numbered E.2015/19298, K. 2015/27819, dated 7.10.2015
16 Supreme Court 9. CC, numbered E.2015/2653, K. 2016/12272, dated 23.05.2016.
17 Dönmez / Okutan, Yargıtay Kararları Işığında Sosyal Medya ve İş İlişkisi, p. 43-44.
18 Supreme Court 9. H.D., E.2015/2653, K. 2016/12272, T. 23.05.2016.
19 Dönmez/Okutan, Yargıtay Kararları Işığında Sosyal Medya ve İş İlişkisi, p. 43-44.
20 Supreme Court 22. CC, numbered E. 2018/9967, K. 2018/20223, dated 26.9.2018.
21 Supreme Court 22. CC, numbered E. 2014/19137, K. 2014/23097, dated 08.09.2014.
22 Supreme Court 22. CC, numbered 2018/9967, K. 2018/20223, dated 26.9.2018.
23 Supreme Court 22. CC, 2014/19137, K. 2014/23097, dated 08.09.2014.
