The application to the Constitutional Court, dated 22/11/2018 and numbered 2018/34548, was concluded on 28/12/2021 and published in the official gazette on February 11, 2022. The application was made with the allegation that the right to respect for private life and the freedom of communication were violated because the employer's examination of the correspondence of the applicant, who works in a private company, using the messaging program called WhatsApp, and the termination of the employment contract on the grounds of these correspondences.
The applicant is a private company employee and worked as an information processing officer at a state hospital affiliated to the Ministry of Health, where he started working on 1.5.2015, until his employment contract was terminated on 22.11.2017. The applicant was asked to submit a justification by the employer company with a letter dated 16.11.2017 against the issues that he tried to obtain permission with false statements, slandered and insulted his colleagues, company and institution managers via the messaging program (WhatsApp), and disrupted the information system in an organized manner with his colleagues. Although the applicant gave his defense on 21.11.2017, his employment contract was terminated without a notice by the employer on 22.11.2017.
Upon this termination, the applicant stated in the Ordu Labor Court (Court) on 20.12.2017 that the employment contract was unfairly terminated, the messaging program (WhatsApp) was used widely, that these correspondences should be protected as PERSONAL DATA, and that the way these conversations were obtained was ambiguous. Expressing that the obtained copy of speeches were unlawful evidence, he filed a lawsuit demanding reemployment. Since the plaintiff party receives a continuous sickness report in order to prevent the termination notice, WhatsApp conversations were reached by the responsible supervisor on the work computer that was provided to him after the applicant forgot to turn it off, and he heavily influenced these correspondences the defendant company representative stated that the company used the right of termination for just cause, the termination without notice and without compensation is valid. It has been stated that in addition to cursing, slander and threats, the applicant's continuous receiving of sickness reports constitutes a justifiable reason for termination. Thereupon, the Court accepted the case on 31.5.2018, the termination was invalid and the applicant was reinstated, but upon the appeal made by the defendant, the 8th Civil Chamber of the Samsun Regional Court of Justice accepted the appeal on 27.9.2018 and decided to reject the case definitively. In the justification of the decision, it was stated that the employer had exercised its right of immediate termination for just cause, and therefore, the written termination condition was not sought, the termination made due to the actions of the applicant was valid, and there were humiliating and insulting correspondences against the defendant company and institution managers in the messages on which the termination was based.
The final decision was notified to the applicant on 14.11.2018. Thereupon, the applicant filed an individual application on 22.11.2018, declaring that his right to a fair trial was violated because the decision was rendered without hearing witnesses and collecting evidence, and his rights to privacy and freedom of communication were violated due to the use of personal data messages as evidence.
The Constitutional Court has stated that within the scope of the right to respect for private life, which is protected in Article 20 of the Constitution and also the freedom of communication guaranteed in Article 22 of the Constitution, the state is obliged not to arbitrarily interfere with the private and family life of individuals and to prevent unjust attacks by third parties. The Constitutional Court had started his evaluation by stating that whatever the content and form of the communication, the Constitution guarantees the confidentiality of the content. Then, in its assessment of the merits, the Constitutional Court emphasized that the employer's authority to control the employee's communication should be examined within the scope of the state's positive obligations (to protect the right by intervening) in the context of the right to respect for private life and freedom of communication. Subsequently, the fact that the labor law to which the dispute is subject to application has a dynamic nature, and that business relations contain some unique legal rules that are different from the general rules, in this context, to ensure the effective execution of the works and to control the information flow, to protect against criminal and legal liability due to the actions of the worker, the Constitutional Court stated that the employer can, as a rule, control the communication tools provided to the employee's use within the scope of his management authority for reasons that can be seen as justified and legitimate, such as measuring productivity or security concerns, and that he may impose restrictions on the use, but these controls and restrictions must be limited to the reasons listed, and must not be in a way that will undermine the essence of the basic rights of the employees. . Otherwise, it is underlined that it will not comply with the worker's rightful expectation that his fundamental rights and freedoms will be respected in the workplace in a democratic society.
Ünal § Partners Legal Team
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