Personnel file and its nature within the scope of PDPL

PERSONAL FILE AND ITS CONTENTS WITHIN THE SCOPE OF THE LAW ON THE PROTECTION OF PERSONAL DATA

1.INTRODUCTION

Under the basic labour law norms, the employer is obliged to create a personnel file (workplace registry file) in accordance with both the burden of proof and the explicit provisions of the legislation. While fulfilling this obligation, the employer is expected to act in accordance with the Constitutional rights and freedoms, the Law on the Protection of Personal Data (‘KVKK’) and other legal regulations, in other words, to fulfil the duty to create a personnel file in accordance with the Constitution and data legislation.

As a matter of fact, according to the provision, which was included in the Labour Law No. 1475 under the title of Workers‘ Schedules and the title of which was changed as the employee personnel file with the Labour Law No. 4857 (’Labour Law“) and the scope of which was developed as documents and records to be issued in accordance with various laws in addition to identity information, the employer is obliged to create a personnel file and submit this file to the relevant institutions and organisations when requested. Administrative fines are stipulated for employers who violate this obligation.

The content of the employee personnel file is not fully specified in the Labour Law. The absence of any provision in the Labour Law does not lead to the conclusion that the content of the personnel file will be freely regulated. The documents and contents of the personnel file vary according to the applicable legislation. Although the lack of a list of documents and records to be included in the personnel file in the Labour Code and the lack of drawing the boundaries of the content of the personnel file are considered as an important deficiency in the doctrine, it may also be beneficial not to determine the boundaries of these files in the relevant legislative regulations, as drawing boundaries in terms of different business areas and needs may cause more harm than benefit.

The employee personnel file is a set of information prepared by the employer, which contains information, documents and records related to the working life of the employee to the extent required by the current employment relationship, and which is not used for any other purpose other than the working relations of the employee.

The employer is under the obligation to keep all kinds of documents and records that it is obliged to issue and is obliged to show the information, documents and records to the authorised officers and authorities when requested. The employer is obliged to use the information obtained about the employee in accordance with the rules of honesty and the law and not to disclose information that the employee has a legitimate interest in keeping confidential.

In the event of a negative situation or dispute between the employee and the employer, the employer can fulfil the burden of proof to be imposed on him by keeping the employee’s personnel file accurate and up-to-date. The personnel file will be the most fundamental source to fulfil the burden of proof if the minutes, medical reports, defences recorded about the employee are kept in this file according to the rules and in an up-to-date manner.

The employer must always keep the documents required by the Labour Law and other laws ready and up to date. Administrative, criminal or civil sanctions are imposed in the event that the lack or outdated documents and records required by the Labour Law and other legislation in the employee personnel file are detected in the audits to be carried out.

There is no certainty as to whether the employee personnel files can be kept in a virtual environment. There is no requirement forkeeping the personnel file in virtual or real environment. However, in terms of the nature of the information contained in the personal file kept in the virtual environment, it must be protected with very strict security measures against information theft.

Since the outputs of the documents transferred to the computer environment through scanning are photocopiesdue to the documents that have the obligation to be issued with a wet signature, they will contain the risk of turning into documents that have no legal value when challenged, both in the transactions of the supervisory authorities and in the disputes that will arise between the employee and the employer. Since procedures such as signature examination cannot be performed on photocopies, it becomes mandatory to keep the original document. Therefore, it is important to keep the personal files in a physical environment.

The documents and records to be included in the file will be analysed in two categories in this document:

Mandatory Documents and Required Documents. Mandatory Documents are the documents specified in the provisions of the Labour Law and other laws, while Required Documents are the documents that the employer must keep in order to fulfil the burden of proof in the event of a dispute between the employee and the employer.

2. PERSONAL FILE

The employee’s personnel file can be defined as ‘a file containing information and documents regarding the employment, work, promotion and termination of the employment relationship, determined in accordance with the legal forms and conditions regarding the professional status of the employee’. When keeping a personnel file, the employer must comply with certain obligations listed below.

Retention Obligation

With the labour relationship established between the employer and the employee, the parties have debts and obligations towards each other. One of the obligations of the employer is to organise the employee’s personnel file. The employer is obliged to keep in the personnel file the documents that he/she is obliged to issue under the Labour Law and other legislation and that he/she has notified to the employee in order to have the quality of proof. When the employment relationship is established, the employer must prepare each document to be included in the employee’s personnel file one by one and keep them in this file.

There is no provision in the Labour Law onhow long the employee’s personnel file should be kept. The personnel file should continue to be kept even after the end of the employment relationship. In order to talk about the retention of the employee’s personnel file, the concept of statute of limitations should be examined.

Article 86 of the Social Security and General Health Insurance Law No. 5510 (‘Law No. 5510’) stipulates that ‘employers and workplace owners are obliged to keep their workplace books, records and documents for a period of ten years starting from the beginning of the year following the year to which they relate … and to submit them within fifteen days if requested by the officers of the Institution assigned to audit and control’.

On the other hand, according to the last paragraph of Article 32 of the Labour Law, “the statute of limitations for wage receivables is five years. ’ Wage receivables become time-barred in five years. When wages are mentioned, in-kind and in-cash wages to be received by the employee are mentioned. While all compensation receivables of the employee, such as notice pay, severance pay, compensation arising from work accidents, which do not qualify as wages, are subject to a 5-year statute of limitations today, they are subject to the ten-year general statute of limitations in Article 125 of the Code of Obligations (‘CO’) for personnel who terminated their employment contract before 25.10.2017. In this context, the general limitation period can also be taken into consideration for the personnel files that can be used as a basis for the determination of the aforementioned employee receivables.

In this context, it can be said that it is appropriate to keep the contents of the entire personnel file for 10 years from the beginning of the year following the termination of the employment relationship.

Obligation to Show

Since the rules laid down by the supervisory and regulatory authorities in labour life cannot provide a sufficient level of order, there is a need to inspect whether the rules of law are followed or not at certain time intervals and by officials appointed by the state. The state fulfils this inspection duty through Labour Inspectors under the Ministry of Labour and Social Security. The employer has the obligation to keep the personnel files of the employee and to show them to those who are authorised to control the working life or assigned by the court or judge during audits and inspections.

Use in Compliance with Labour Law

The first issue that comes to mind when talking about the concept of lawful use is the protection of the personalities, honour and dignity of the workers due to the personal information provided by the workers working in that workplace. Protecting the personality of the employee, as required by the employer’s duty of care for the employee, includes the protection ofthe employee’s life, health, physical and mental integrity, honour and dignity, personal and professional reputation, private life, moral values, freedom in general, freedom of thought and freedom of union organisation.

The employer is obliged to usethe information obtained about the employee in accordance with the rules of honesty and the law, and not to disclose information that the employee has a legitimate interest in keeping confidential. However, there is no provision in the Labour Law that stipulates sanctions for the employer in case of a violation of this behaviour.

In matters such ascollecting, storing and not disclosing data on the worker, questions asked to the worker, health tests (alcohol, drugs, HIV, genetics, etc.), psychological tests, monitoring and surveillance of workers, searches of their clothes and belongings, interference with their lifestyles inside and outside the workplace, etc., the employer must respect the personality and private life of the worker, but mustresort to such practices within the framework permitted by law.

There are two forms of lawful use defined in the Labour Law. The first is that the employer may only show the file to authorised officials, and the second is that the documents may be examined upon the decision of a court or a judge. Apart from these, the employer is authorised to use the documents and records in the employee personnel file within the limits set by the general law and in accordance with the rules of good faith.

For example, the employee has a legitimate interest in not including the conviction status of an ex-convicted employee in the documents issued about the employee after the removal of the conviction information from the criminal record. It can be argued that the employee has a legitimate interest in keeping confidential the health information of the employee who has health problems that do not interfere with his/her job, the information on marital status and age if the employee does not want, the information on the type of disease in health problems that interfere with the job, the information on the income and economic status of the employee. There is no doubt that the employee has a legitimate interest in keeping his/her residence information confidential.

Of course, when determining which information the employee has a legitimate interest in keeping confidential according to the concrete situation, many information other than those listed by way of example may emerge. The employer should disclose the documents in the employee’s personnel file within the framework of the rules of honesty when it has a legitimate interest for itself, and the legitimate interest of the employee should not be ignored.

Providing Correct Information

Not only the employer but also the employee is obliged to act in accordance with the ‘rule of honesty’according to Article 2 of the Turkish Civil Code. According to Article 25/II-a of the Labour Law,if the employee misleads the employer by claiming that he/she has the qualifications or conditions required for one of the essential points of this contract, although he/she does not have them, or by giving information or words that are not in accordance with the truth, the employer may terminate the employment contract before the expiry of the term or without waiting for the notice period, whether the term is fixed or not.

An employee whose employment contract is terminated for any reason and who leaves his/her job may be given a certificate of employment when his/her relationship with the workplace is terminated. In the event that the new employer, who hired the employee based on the document that does not contain accurate information, is damaged, compensation may be requested from the former employer, and the damaged employee may also request compensation from his former employer. In this case, employers must prepare the work certificate that they are obliged to give to the employee objectively and accurately.

Providing the Obligation of Proof (Evidential Quality)

When the personnel file organised by the employer on behalf of the employee is kept in full, it has the quality of evidence in case of any dispute that may arise between the employee and the employer. It is determined that if the personnel file, which the employee relies on as evidence, is not submitted to the court, an opinion is formed in favour of the employee and ease of proof is provided in terms of the employee’s claims, for example, in overtime work claims, witness statements, which are described as weak and flimsy evidence, and claims that are not in accordance with the truth are put forward. On the other hand, in cases where the personnel file is complete and the documents and records are kept in full, the problems between the employee and the employer can be solved more objectively.

Keeping up to date

The information received from the worker during the recruitment phase should not remain as received. The obligation to organise the file cannot be fulfilled only by creating the file and adding documents to it; the information should be constantly updated and the requests for changes made by the employee should be reviewed. The right to request an amendment covers a number of different situations such as reflecting the worker’s different personal and professional information in the personnel file, updating the personnel file information and objecting to the documents related to the practices made against the worker together with the decision based on the document.

3. CONDITIONS AND SCOPE OF ORGANISING EMPLOYEE PERSONNEL FILE

Mandatory documents are the documents that are required to be prepared by the Labour Law and other laws and are included in the law itself. Documents that are not stipulated by the Labour Law and other laws are not mandatory. Required documents are documents that are collected within the framework of the employer’s legal obligations and debts and the obligations arising from the employment contract, especially for purposes such as efficient and correct management of the work in accordance with the law, organisation of the work in accordance with the law, implementation of occupational health and safety measures, audit or to help fulfil the burden of proof or evidence in cases of dispute.

Apart from the documents required by the Labour Law and other legislation, especially sensitive information regarding the private life, family status, personal characteristics, health and similar issues of the employee should not be included in the file. Every record to be kept must be related to the labour relationship between the employee and the employer. Only the documents necessary for the employee’s work at the workplace should be included in the employee’s personal file as much as necessary. Alcohol, personality, psychological, health, genetic, genetic and similar tests should not becarried out by the employer without a very special necessity, although they are not unlawful , and the necessary reports should not be included in the employee’s personnel file.

The employer may take and implement decisions within the framework of the right of management in order to establish the scope of the personnel file. Behaviours contrary to the decisions taken by the employer in this direction may be considered as a violation of the employee’s duty of obedience.

The employer should keep in the file especially the documents related to job security, minutes, records, reports and notifications regarding the employees kept in the workplace. It is important that these documents are constantly updated and kept in an orderly and organised manner for the investigation and follow-up of the employee.

The main criterion for the distinction between mandatory and required documents is that mandatory documents are based directly on the provision of the law, while required documents have the quality of legality indirectly.

According to the provision of the law, the documents constituting the content of the employee’s personnel file to be kept must be notified to the employee against his signature. If the employee does not sign the notification despite being served, a report shall be made by at least two persons as regulated under Article 109 of the Labour Law. The minutes should include the content of the notification and the fact that the employee refrained from signing. A copy of all notifications made by the employer to the employee must be included in the personnel file.

3.1.Mandatory Documents

3.1.1.Documents to be kept in the personal file related to the labour contract

According to the provision in Article 75 of the Labour Law on keeping the employee’s personnel file, the identity information of the employee must be included in the employee’s personnel file, and it is a document that is required by law to be kept in accordance with the article. Documents that have the quality of proving identity information should be evaluated within this scope. For example, copy of identity card, passport photo, etc.

An employment contract is a contract that establishes personal relations between the employee and the employer and imposes mutual and continuous obligations. It creates a relationship of trust between the employee and the employer that should not be broken. For this reason, in addition to the obligations to perform work and pay wages, obligations such as loyalty and obedience on the part of the employee, and obligations such as supervision and equal treatment on the part of the employer arise in the employment contract.

In the Labour Law, there are differences between the labour contracts that are concluded for a certain period of time and those that are concluded for an indefinite period of time in terms of the form of the contract, the provisions to be applied to the contract and the termination of the contracts. In employment contracts that must be made in writing, issues such as the identity of the parties, the work to be done, the wage to be received by the employee, the duration of the contract, the signatures of the parties must be included in the text of the employment contract.

3.1.2.Documents to be kept in the personal file regarding working conditions

Regarding the working conditions, the personnel file will primarily contain information about the permission document that foreign workers must obtain in order to work , the consent documents to work on national holidays and general holidays taken from the worker in cases where there is no provision in the contract, the control examination reports that must be taken in certain periods for workers and children to be employed in heavy and dangerous work, and the doctor’s report that must be taken before employing children of working age (16 years old but not over18 years old ).

Work Permit – Foreign workers who obtain a work permit must give a copy of these documents to the employer after obtaining the residence permit. Whether foreigners and employers fulfil their obligations arising from the law is inspected by the Ministry Labour Inspectors and Social Insurance Institution Insurance Inspectors.

Overtime Work Consent Form – The written consent of the employeemust be obtained in order to make the employee work overtime, and the employee cannot be made to work overtime without consent (Labour Law 41/7). Article 9 of the Regulation on Overtime Work and Working for Excessive Periods Regarding the Labour Law states that ‘The written consent of the employee must be obtained for overtime work and working for excessive periods. This approval is not required for overtime work and overtime work performed due to compulsory reasons or extraordinary circumstances. This approval is obtained by the employer who needs overtime work during the conclusion of the employment contract or when this need arises and is kept in the employee’s personnel file.’ For this reason, written approval for overtime work must be obtained from the employee and kept in the personnel file. In the decision of the 9th HD of the Court of Cassation dated 05.04.2021 and numbered 2021/3306 E and 2021/7614 K ‘First of all, it is necessary to submit the employment contract by the defendant employer and determine whether there is a provision in the contract regarding whether 270 hours are included in the wage. If there is a provision in the contract that 270 hours are included in the wage, the overtime wage for the plaintiff’s 270 hours of work per year should be accepted as being included in the wage and overtime wage should be accepted for the part exceeding 270 hours.” As can be understood from this decision, the overtime approval given in the employment contract will be valid.

In cases where there is no provision in the contract, the employer cannot force the employees to work on holidays and New Year’s days in the workplace, and cannot cause dismissal without compensation for just cause or with compensation for just cause, unless it is agreed in the contract or the approval of the employee is obtained.

After being recruited and starting to work, it must be taken again at least every six months until the employee reaches the age of 18. These reports to be taken both at the time of employment and during the continuation of the work must be kept and protected at the workplace and must be shown to the authorised officers upon request.

3.1.3. Documents to be kept in the personal file after the contract is concluded

Doctor’s Approval Required for Pregnant Women to Work Before Childbirth (Labour Law Art. 74/1) – The period during which female workers are prohibited from working before childbirth is specified as 8 weeks if they are pregnant with a single child and 10 weeks if there is a multiple pregnancy. Some women may continue to work until 3 weeks before the birth with a doctor’s report when they are not affected by pregnancy due to their constitution and the nature of their work.

Doctor’s Report Indicating the Necessity of Increasing Prenatal and Postnatal Leave (Art. 74/2 of the Labour Law) – The periods to be given to female workers before and after childbirth are the minimum periods. Leave periods can be increased with a doctor’s report according to the health condition and the nature of the work performed. 16 weeks of maternity leave cannot be reduced.

Leave Registration Document Showing Annual Paid Leave and Bearing the Signature of the Employee (Labour Law Art. 56/4) – According to Article 50 of the Constitution, “Rest is the right of employees. ’ Rest is both mandatory for the physical protection of the employee and necessary for the efficiency of the employee’s work after rest. The right to rest can be defined as the right to annual paid rest provided to the worker who is tired after completing a certain waiting period and who is still able to work, in a consecutive and, in principle, undivided manner. According to Article 21 of the Regulation on Annual Paid Leave, the employer or the employer’s representative is obliged to give in advance or pay in advance to each worker who takes his annual paid leave, the wage for the leave period and other wages and rights in the form of wages that coincide with this period before the start of the leave. The employer is obliged to keep an annual leave record document showing the leave status of the workers. It is the employer’s obligation to prepare and keep the documents regarding the wages to be paid. The employer must keep the document showing the annual leave and the document showing the annual leave fees paid to the employee inthe employee’s personnel file.

Sample of the ‘Wage Calculation Sheet’, which must be given to the employee every month, bearing the employee’s signature (Art. 37 of the Labour Law) – In the wage calculation sheet given to the employee, the amount of all kinds of additions made to the actual wage such as overtime work, week holidays, holidays and general holiday wages and all kinds of deductions such as tax, insurance premium, advance payment offset, alimony and execution must be shown separately on the day of payment of the wage and for the period to which it relates. The wage statement showing the wage paid by the employer to the employee, bearing the signature of the employee or bearing the special mark of the workplace, must be included in the personnel file. Having the workers sign the relevant wage calculation sheets will be of great importance in order to fulfil the burden of proof in the event of a possible lawsuit.

Written Notifications Regarding a Substantial Change in Working Conditions and Termination of the Employment Contract – The purpose of Article 22 of the Labour Law is to maintain the employment relationship by making certain changes in the working conditions instead of direct termination of the employment contract in the presence of clearly obvious adverse conditions.

‘The employer may makea fundamental change in the working conditionsarising from the employment contract or the personnel regulations and similar sources annexed to the employment contract or workplace practice only by notifying the employee in writing. Changes not made in accordance with this form and not accepted by the worker in writing within six working days shall not bind the worker. If the employee does not accept the proposed change within this period, the employer may terminate the employment contract by explaining in writing that the change is based on a valid reason or that there is another valid reason for termination and by complying with the notice period. In this case, the employee may file a lawsuit according to the provisions of Articles 17 to 21.”

The written notification that there is a valid reason for termination and the statement of non-acceptance of the written notification of the written notification of the fundamental change proposal are kept in the personnel file.

3.1.4.Documents to be kept in the personnel file regarding the Social Security Institution

A copy of the work certificate that must be given to the employee when the employment contract is terminated and a record showing that the document was given to the employee and signed by the employee – According to Article 28 of the Labour Law “Work certificate; The employee who leaves the job is given a document by the employer showing the type and duration of the job. The employee who is harmed by the failure to provide the document on time or by the presence of incorrect information in the document or the new employer who employs the employee may claim compensation from the former employer. These documents are exempt from all kinds of duties and fees.”

There is no legal regulation on the printed form of the labour certificate. The employee signs the copy of the work certificate, which will be issued in two copies and will remain with the employer, with a note that the employee has received the other copy of the document, or it is determined by a report and kept in the personnel file.

Unemployment Insurance Law (Art. 48/4) – Employers are obliged to issue 3 copies of theNotification of Termination of Employment (IAB ) within 15 days from the date of termination of the employment contract for the insured unemployed whose service contracts are terminated, and within this period, send one copy to the İŞKUR branch in the place where the workplace is located, give one copy to the insured unemployed and keep the other copy in the workplace. Employers who do not submit the IAB to the Institution within the time limit will be imposed an administrative fine for each act separately according to Article 39 of the Labour Law.

Employment Declaration – Workers do not need to take any legal action to be insured. It is the duty of the employer to prepare an employment declaration and give it to the relevant persons and institutions. If the employer submits the employment declaration to the institution within one month from the date of commencement of employment in the presence of certain conditions listed in the Labour Law, it is deemed to have been notified before the commencement of insurance. Being insured is both a right and an obligation for the employee.

3.1.5. Documents to be kept in the personnel file and archive when the employment contract ends

Release – A release is a document showing that the employee has received all receivables arising from the employment relationship from the employer. Although the obligations arising between the parties with the established labour relationship are made according to a certain form by the Labour Law and the parties, there is no special form for the elimination of some or all of the receivables with the release agreement.

The release agreement must be drawn up with clarity, free from any doubt and hesitation, and all the released receivables must be set out in the release agreement individually and separately with the amounts released. For example, all items such as wages, overtime work, week holidays, national holidays and general holidays, annual leave pay, bonuses, notice pay, severance pay, etc. must be stated in the release with their individual amounts.

Since the release is only valid for the receivables arising in the past, it is not valid for the future employee receivables. The releases issued before the termination of the employment contract are invalid.

Pursuant to Article 87 of the TCO, the debtor who pays the debt has the right to request a receipt in return. In the event of a contrary situation, the employee must fulfil the employer’s request for a receipt showing that the receivable has been collected from the employee as a means of proof. In this case, the employee fulfils the employer’s request for a release and the employer keeps this document in the employee’s personnel file.

Written Notice of Termination – According to Article 19/1 of the Labour Law, ‘the employer is obliged to give the notice of termination in writing and to state the reason for termination clearly and precisely.’ In addition to Article 109 of the Labour Law and the provision stipulating that notifications must be made in writing to the relevant person in general, the principle of clearly and precisely stating the reason for termination in the notification has been introduced. In the event that the employee refrains from receiving the written notice of termination after the written notice of termination has been served in writing, pursuant to Article 109 of the Labour Code, the situation shall be recorded by declaring that the employee refrained from receiving the written notice of termination or signing the notice and by showing witnesses. The fact that the employee does not accept the written notice of termination does not mean that it was made verbally and does not invalidate the termination.

3.2. Required Documents

The management of the collection of such voluntary information must not be unlawful. It is obligatory to obtain information or issue a document on a matter related to the labour relationship of the employee about whom information or documents are issued. Required Documents;

  • Pre-employment Documents (Curriculum Vitae CV, Job Application Form, Interview Records, Interview and Test Results for Measuring Competence)

Since the employees’ declaration of false information to their employers in terms of their qualifications may lead to the termination of their employment contracts for just cause, the retention of the documents submitted to the employer with the request for employment may be based on the legal grounds that the processing of personal data is mandatory for the legitimate interest of the data controller.

  • Residence Certificate,

The presence of residence records in personal filescan be based on the legal reasons that the processing of personal data belonging to the parties of the contract is mandatory for the establishment or performance of a contract in terms ofthe Law on the Protection of Personal Data (‘KVKK’) and that the processing of personal data is mandatory for the legitimate interest of the data controller, provided that it does not harm the fundamental rights and freedoms of the data subject. Therefore, since it will be in accordance with the law and honesty rules to be included in the personal files, its processing does not involve any risk.

  • Copies of Documents Regarding Educational Status (Diploma, Temporary Graduation Certificate, etc.),

Pursuant to Article 25/2-a of the Labour Law, employees are obliged to provide accurate information to the employer about their qualifications or conditions. Since misleading information regarding the educational status of the employee enables the employer to terminate the employee for just cause, it is in accordance with the law and the rules of honesty to have documents showing the educational status in the personnel files of the employees. If the person allocates extra documents other than the documents showing the educational status expected from him/her, these documents must be returned to the employee without being included in the data recording system.

  • Military Service Status Certificate,

The processing of the document showing the person’s military status certificate in the personal file may be based on the legal reason that data processing is mandatory for the legitimate interests of the data controller, provided that it does not harm the fundamental rights and freedoms of the data subject in accordance with Article 5/2-f of the LPPD. In addition, as an employer, there is an obligation not to employ deserters. Therefore, processing does not involve any risk. However, since exemptions from military service are generally related to the health status of the person, if the reason for exemption is written on the military service status document, it is a measure to be taken in terms of data security to mask this part and keep it in personal files.

  • Driver’s Licence

If the processing of the employee’s driving licence records is mandatory for the establishment of the employment contract between the employee and the employer, there is no harm in processing the photocopy of the driving licence. However, if the employee will not be allocated a vehicle within the scope of the employment contract or will not drive at the workplace, processing the driver’s licence records may violate the principles of limitation and proportionality. For this reason, this situation should be taken into consideration during recruitment and it should be ensured that the driving licence records are kept in the personal files if needed.

  • Criminal Record, explanations regarding the criminal record are given in detail under the fourth heading.
  • Training Information and Documents Given to the Worker / Received by the Worker
  • Embezzlement Minutes Regarding the Materials Given to the Worker
  • Policies and Procedures
    • Corporate working principles,
    • Personnel regulations
    • Signed notification documents regarding internal regulations and similar documents containing workplace rules
  • Documents on Occupational Health and Safety Measures
    • Documents showing that the information, tools and equipment have been given and containing a list of them, bearing the signature of the worker,
    • Schedules showing the trainings that have been and will be carried out at the workplace and that the worker has attended and will attend these trainings,
  • Documents Regulating the Duration of the Worker’s Work,
    • Petitions for all kinds of leave granted to the employee and leave utilisation schedules,
    • Petition of the worker who wants to use free time and free time schedule,
    • Within the framework of the breaks announced in the workplace, a document indicating that the worker has used the weekly or monthly breaks to be taken from the worker,
    • Schedules showing the worker’s periodic (maximum two-month) working hours and paid free time on the days when the equalisation principle is applied,
    • Night work schedules showing that night work is not performed for more than 7.5 hours and signed by the worker,
    • Examples of sick leave reports and visit notes,
  • Substantive Change Agreements,
    • Documents Indicating Promotion and Transfer Procedures,
    • Documents Indicating Changes in the Wage and Social Rights of the Worker,
  • Documents showing the periodic results of the Performance and Efficiency Evaluation System,
    • Documents related to performance evaluation results
    • Signed notification/receipt documents regarding performance evaluation criteria
    • Correspondence between departments related to the employee and other documents deemed necessary
  • Notifications made to the employee during the labour process,
    • Warnings, documents on the basis of warnings,
    • Punishments according to the rules,
    • Calls to the worker to provide a defence,
    • Defences given by the worker,
    • Minutes regarding the employee who refuses to serve notices,
  • In Respect of Female Labourers;
    • If there is a multiple pregnancy, a doctor’s report showing this,
    • The gynaecologist’s report indicating when periodic check-ups are due for pregnancy,
    • A petition signed by the employee indicating how he/she wishes to use his/her milk leave, and a milk leave schedule prepared according to this request,
  • Documents Regarding the Termination of the Employment Contract or Other Reasons for Termination , payment receipts signed by the employee showing that the mandatory payments to the employee have been made
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4. PERSONAL FILE IN LIGHT OF THE LAW ON THE PROTECTION OF PERSONAL DATA

Within the scope of the LPPD, all kinds of specific or identifiable data belonging to a natural person are defined as personal data, and in general, the types of personal data are not determined by enumeration. In this context, both in the principle decisions and practices of the Personal Data Protection Authority and in the decisions of the Constitutional Court, personal data types are determined by sampling. Accordingly, it is possible to say that all data that make a real person directly or indirectly identifiable, such as a real person’s name, surname, date and place of birth, telephone number, SSI number, passport number, licence plate number, IP address, e-mail address, family information, as well as CV, picture, image, sound recording, fingerprint, genetic information, hobbies, preferences, people interacted with, association, foundation, trade union, party memberships, are personal data.

Personal data such as fingerprints, genetic information, hobbies, preferences, associations, foundations, trade unions, party memberships among those listed above by way of sampling are data that may cause the person concerned to be victimised or discriminated against if they are learned by others due to their nature. Therefore, considering the sensitive nature of these data, the legislator has defined the race, ethnic origin, political opinion, philosophical belief, religion, sect or other beliefs, appearance and dress, association, foundation or trade union membership, health, sexual life, criminal conviction and security measures, and biometric and genetic data as sensitive personal data and it is stipulated that sensitive personal data cannot be processed except for the exceptions listed in the KVKK.

The obligation to inform is one of the basic obligations of the ‘data controller’ (it is accepted that the employer is the data controller in the employee-employer relationship), which refers to the natural or legal person who determines the purposes and means of processing personal data within the scope of the LPPD and is responsible for the establishment and management of the data recording system; the employer or the person authorised by the employer has the obligation to inform about the identity of the data controller and its representative, if any, within the scope of the obligation to inform, what is the purpose of processing personal data, to whom and for what purpose the processed data can be transferred, the method and legal reason for data collection and the rights of the person concerned.

The employer (data controller) must fulfil its obligation to inform in every case where it processes the personal data of its employee (data subject – natural person whose personal data is processed), on a process basis in accordance with the activities of its business and without the request of its employee. While fulfilling this obligation, the employer should avoid general and ambiguous expressions and explain to the employee which personal data, on what legal grounds, for what purposes, the third parties to whom it transfers and the reason for the transfer by using understandable, clear and plain language and incomplete, misleading, deceptive and incorrect information should be avoided. The obligation to prove that the obligation of disclosure has been fulfilled also belongs to the employer as the data controller.

Since the burden of proof in the legal relationship between the employee and the employer in terms of labour law is generally on the employer and the proof of the fulfilment of the obligation to inform belongs to the employer as the data controller, the fact that the employer fulfils the obligation to inform in writing will provide convenience at the point of provability.

It is important that the employer, who is obliged to create a personnel file in accordance with the Labour Law, provides the reasons for compliance with the law within the scope of KVKK as the data controller in all and every stage of the actions taken regarding the personnel file. Evaluations regarding the documents that must be included in the personnel file without exception are given below.

Identity Information of the Employee

According to Law No. 5510, employers are obliged to use the Turkish ID number(for foreign nationals, the ID number issued by the Ministry) in the registration and all other transactions of their employees. According to the same law, it is obligatory to include the name-surname and identification number of the employee in the monthly payrolls. According to the Law No. 5490 on Population Services, the employer is obliged to request an ‘identity card’ from the persons to be employed.

Employee’s Marital Status and Family Status Information

According to the Income Tax Law No. 193 and Income Tax Communiqué No. 295, the minimum subsistence allowance was applied to the income tax calculated by using the tax tariff over the tax base of the workers. The basic parameters in the application of the minimum subsistence allowance were the marital status of the employee at the date of income, the number of children he/she had and accordingly, the minimum subsistence allowance was applied to the employee by calculating the gross minimum wage applied at the beginning of the year. The employer provides some of the compassionate leave that the employer is obliged to provide to the employee in accordance with the legislation, taking into account the changes in the marital status of the employee and the number of children. In many collective bargaining agreements, social benefits (marriage allowance, birth allowance, education allowance, circumcision allowance, death allowance) which are expected to be provided by the employer to the employee as per the agreement are also provided . The marital status of the employee, the number of children and even the education level of his/her children and the death of his/her relatives are taken into consideration.

Since the minimum subsistence allowance provision has been abolished by entering into force on 25.12.2021 to be applied to wage payments made as of 1/1/2022, Family Status Information should not be requested if the above conditions are not available.

Health Reports, Periodic Reports and Resting Reports Received at Employment

According to Law No. 6331 on Occupational Health and Safety (‘OHSL’), the employer is responsible for the health surveillance of its employees. The employer is obliged to carry out periodic health examinations upon the request of the employee at the time of recruitment, job changes, after dismissal from work for any reason, and during the continuation of the work, according to the nature of the work carried out and the hazard class, and fines are stipulated for employers who violate these obligations.

According to the Labour Law, employers employing fifty or more employees are obliged to employ disabled people at the rates specified in the law in proportion to the number of employees they employ, and administrative fines are also stipulated by the legislator for those who violate this obligation. Again, within the scope of many special laws and secondary legislation, it is possible to see that monitoring the health status of the worker is necessary and even a prerequisite for the employment of the worker and the continuation of this employment.

In this context, for example, according to the Highways Traffic Law No. 2918 and the related transport regulation, it is necessary to determine with a report that the worker to be employed as a driver is physically and psychotechnically healthy to perform the profession of driving, and these reports must be renewed every five years as a rule after the employment is provided once. According to the same law, in cases where the driver’s licence is temporarily withdrawn for various reasons listed in the law, these reports must also be obtained on previous dates.

According to the Law No. 2920 on Turkish Civil Aviation, in terms of the person to be employed as a pilot; it is a condition to obtain a civil aviation personnel qualification certificate and to renew this certificate at certain intervals; According to the related legislation, one of the prerequisites for obtaining a qualification certificate is to obtain medical suitability reports and to renew this report at certain intervals.

Pursuant to the Law No. 6331 on Occupational Health and Safety, employers are obliged to carry out health examinations of their employees upon recruitment. In this context, keeping the health reports issued and approved by the workplace physician in the personal files of the employees is in accordance with the law and good faith in accordance with Article 6/3 of the LPPD. The issue to be considered here is the data security measures to be taken regarding health reports. Personnel who have access to health reports should be informed about this issue and access authorisation should not be given to every personnel. Health reports should be removed from personal files and kept in the personal health files of employees. In accordance with Article 7 of the Occupational Health and Safety Services Regulation, they should be kept for 15 (fifteen) years from the date the employee leaves the job. Keeping personal files and health files separately is the biggest measure to be taken at this point.

Radiography Reports, Audiometry / SFT / Haemogram / ECG / Blood Group / Sugar / Eye Examination Report Test Results: According to Law No. 6331 on Occupational Health and Safety, employers shall ensure that employees are subject to health surveillance, taking into account the health and safety risks that they may be exposed to in the workplace. In this context, employers are obliged to carry out health surveillance at the time of employment and during the continuation of the work or at intervals determined by the Ministry of Labour and Social Security according to the nature of the work and the hazard class of the workplace. Although radiography reports are in the nature of special categories of personal data regarding the health status of employees, since they are stipulated by law and processed by the workplace physician, they can be processed without obtaining explicit consent from the relevant person in accordance with the legal reasons specified in Article 6/3 (b) and (f) of the LPPD. Radiography reports should be removed from the personal files and kept in the personal health files of the employees. In accordance with Article 7 of the Occupational Health and Safety Services Regulation, radiography reports must be destroyed at the end of 15 (fifteen) years from the date the employee leaves the job.

Payrolls

According to Law No. 5510, the employer is obliged to issue a payroll every month and to include the name, surname and social security registration number of the employee in this payroll, as well as the information about the workplace, the month to which the payroll belongs, and the details of the wage. The signature of the employee on this payroll is another obligation. Administrative fines are stipulated by the legislator for employers who do not issue payrolls duly or at all.

According to the established jurisprudence of the Court of Cassation, in the event that different amounts of wage payments, including overtime wage accruals, are made through a bank channel every month, although the employee has not signed the payroll, the fact that no reservation has been put forward leads to the conclusion that it is necessary to prove by written evidence that overtime work has been performed in excess of what has been paid. Therefore, it is clear that the presence of the payroll in the personnel file is in the legal interest of the employer in this respect for the employer, who has the burden of proof.

Notification of Employment, Notification of Termination of Employment and Monthly Notifications

According to the Law No. 5510, the employer is obliged to make the insurance notification (employment notification) of the employee to be recruited before the commencement of employment, and the insurance notification (termination notification) of the employee whose employment contract is terminated within ten days at the latest. According to the same law, the employer is obliged to issue monthly premium and service certificates for its employees. As a matter of fact, the commencement, termination and scope of insurance are determined on the basis of these notifications. Within the scope of the regulation under the Law, it is foreseen that these notifications will be issued in a way to include the personal data of the employee such as Social Security Registration Number, name and surname.

Annual Leave Documents

According to the Labour Law and the Annual Paid Leave Regulation, the employer is obliged to keep a leave record document showing the annual paid leave of the employees working in the workplace. As the employer is obliged to prove the use of annual leave in accordance with the established case law, since it is not possible to prove the use of annual leave with witnesses, the employer must keep a record document showing the annual leave.

Compassionate Leave Documents

With the amendment made to the Labour Law on 04.04.2015, a provision was added stating that the employer shall provide three days of paid leave to the employee who gets married, adopts a child or loses his/her parents, spouse, sibling or child, and five days of paid leave in case the spouse of the employee gives birth. The same amendment also stipulates that paid compassionate leave will be granted for the treatment of the employer’s employee’s child who is at least seventy per cent disabled or has a chronic disease.

Criminal Record

The obligation of the employer to take care of his employee, which is obliged by the employment contract, is an obligation that is based on the rule of honesty and can be described as the equivalent of the employee’s duty of loyalty. Pursuant to the duty of care, the employer is obliged to respect the employee, to protect his/her personal rights and to maintain an order in the workplace in accordance with the principles of honesty, in particular to take the necessary measures to prevent psychological and sexual harassment of the employees and to prevent further damage to those who have been subjected to such harassment.

According to the Labour Law, employers employing fifty or more workers are obliged to employ ex-convicts in proportion to the number of workers they employ, and administrative fines are also stipulated by the legislator for those who violate this obligation. Article 30 of the Labour Law on ex-convicts has been amended by Law No. 5763 and the obligation to employ ex-convicts in private sector workplaces has been completely abolished and only 2% of ex-convicts are employed in public sector workplaces.

Within the scope of many special laws and related secondary legislation, it is possible to see that the criminal record of the employee is necessary and often even a prerequisite for the employment of the employee and the continuation of this employment.

In this context, for example, according to the Press Law No. 5187, among the prerequisites for employment as a responsible manager, the candidate for employment in this position should not be restricted or banned from public service and should not have been convicted of a disgraceful offence.

Article 4 of the Law No. 5580 on Private Education Institutions of the Ministry of National Education 4 of the Ministry of National Education Law No. 5580 on Private Education Institutions stipulates that the founder, founder’s representative and/or staff of private education institutions shall not have been sentenced to imprisonment for one year or more for a deliberate offence or, even if pardoned, crimes against the state, crimes against the constitutional order and the functioning of this order, crimes against national defence, crimes against state secrets and espionage, embezzlement, extortion, bribery, theft, fraud, forgery, breach of trust, fraudulent bankruptcy, bid rigging, bid rigging, bid rigging, laundering the proceeds of crime, smuggling offences, offences against sexual immunity and offences committed within the scope of the Law on Prevention of Laundering Proceeds of Crime, or not being prosecuted for these offences.

Article 8/2/ç of the Regulation on the Competition, Competence and Qualification Examinations and Working Procedures and Principles of the Professional Personnel of the Banking Regulation and Supervision Agency states that the candidates who will take the exam will be asked for a statement of criminal record.

Article 5/1/ç of the Communiqué on Independent Auditing Standards in Capital Markets states that independent auditors must have a criminal record.

According to the Law No. 2219 on Private Hospitals, the responsible manager of the hospital must not have been sentenced to heavy imprisonment for any crime or imprisonment for crimes that violate honour and dignity.

According to the Law No. 1219 on the Practice of Medicine and Medical Practices, even if the periods specified in the law have elapsed for the practice of the profession of medicine and dentistry; not to have been sentenced to imprisonment for five years or more for a crime committed deliberately or for crimes against the security of the state, crimes against the constitutional order and the functioning of this order, embezzlement, extortion, bribery, theft, fraud, forgery, abuse of trust, fraudulent bankruptcy, bid rigging, bid rigging, bid rigging, laundering of assets derived from crime or smuggling.

Employees who will be employed in the transport business according to the School Service Vehicles Regulation issued under other laws such as the Road Transport Law, the Highway Traffic Law, the Metropolitan Municipality Law, etc. must not be convicted of crimes against state security, disgraceful crimes, crimes against sexual immunity, even if they have been pardoned and their legal periods have expired.

On the other hand, even if there are no such specific provisions, it is also clear that the employer, who is under the obligation of care towards his employee under general provisions, will be required to keep the criminal record within the scope of the employee’s personal file within the scope of the right to process the personal data of the employee to the extent necessary for the performance of the employment contract.

The information regarding the criminal conviction of the person has the quality of special categories of personal data in accordance with Article 6/1 of the LPPD and as explained above, special categories of personal data can be processed in the presence of the conditions clearly stated in Article 6/3 of the LPPD. Accordingly

  • The existence of the explicit consent of the person concerned,
  • Processing of special categories of personal data is clearly stipulated in the law,
  • Processing of sensitive personal data is mandatory for the protection of the life or physical integrity of the person who is unable to disclose his/her consent due to actual impossibility or whose consent is not legally valid, or of himself/herself or of another person,
  • It is related to the personal data made public by the data subject and is in accordance with the will of the data subject to make it public,
  • Processing of special categories of personal data is mandatory for the establishment, exercise or protection of a right,
  • Processing of special categories of personal data is necessary for the protection of public health, preventive medicine, medical diagnosis, treatment and care services, and planning, management and financing of health services by persons under the obligation of confidentiality or authorised institutions and organisations,
  • Processing of such special categories of personal data is mandatory for the fulfilment of legal obligations in the fields of employment, occupational health and safety, social security, social services and social assistance,
  • It is possible to process sensitive personal data of foundations, associations and other non-profit organisations or formations established for political, philosophical, religious or trade union purposes, provided that they comply with the legislation to which they are subject and their purposes, are limited to their fields of activity and are not disclosed to third parties; in cases where the processing of sensitive personal data is intended for current or former members and members or persons who are in regular contact with these organisations and formations.

When the relevant processing purposes are considered in terms of criminal records, since it is evaluated that the exceptional processing purposes other than obtaining the explicit consent of the relevant person will not be appropriate for the process, our suggestion is not to keep the criminal records in the personnel files in order not to create unrest in the workplace by obtaining explicit consent from the employees many times and not to violate the principle of proportionality. By developing an internal policy, the employee will be asked for a criminal record before starting work, and when the employee brings the record, the record can be returned to the employee after it is visually checked. This practice can be repeated once a year to keep the records up to date. If explicit consent is obtained and kept in personal files, it will be useful to destroy it 6 months after it is received, if possible, and if otherwise decided in line with the management right, it will be useful to anonymise, return it to the employee or destroy it during the first periodic destruction period after the employee leaves the job.

Address Register

Residence address is the place registered in the address registration system in Turkey. Institutions and individuals take address information as basis in their business and transactions. Public or private institutions are obliged to obtain ‘identity cards’ from the persons they will employ, and if they are not registered in the population, they are obliged to determine the identity and address of these persons in the declaration procedure and notify the Population Directorates. According to the Labour Law, employers are obliged to notify the addresses of the employer’s representatives to the Regional Directorates within one month. For employers who employ foreigners, the work permit is considered as a residence permit.

Article 109 of the Labour Law stipulates that all notifications stipulated within the scope of the law must be made by the employer in writing and against signature, and if the employee refrains from signing, the situation must be determined with a report and the provisions of the Notification Law No. 7201 are reserved.

The presence of the employee’s address record in the personnel file is also in the legitimate interest of the employer, who has the burden of proof, as it is necessary for the fulfilment of the legal obligation and the protection of the right.

The presence of the employee’s address record in the personnel file is also in the legal interest of both the employee and the employer in terms of the provision of social benefits provided to the employee within the scope of the performance of the employment contract. For example, if the personnel shuttle service is provided at the workplace, the route to be used for the transfer of the employee to and from the workplace will be determined according to the address of the employee. Or, if the workplace provides travel assistance, the travel fee will also be determined according to the distance of the worker’s address to the workplace.

Disciplinary Records

The Labour Law stipulates that in cases where there is a provision in the labour contract or collective bargaining agreement, the employee may be subjected to wage deduction as a disciplinary sanction. Although there are no explicit provisions on the definition, conditions and application of other disciplinary sanctions to be applied to the employee, the content of the provisions on termination for just cause and termination for valid reason expresses the legal basis of disciplinary records.

In this context, for example, the employer who has the right to terminate the employment contract due to absenteeism must record the employee’s absenteeism. Since the employee’s absenteeism alone is not sufficient for the termination of the contract for just cause, the employer, who has to investigate the reason for the employee’s absenteeism, has to take the defence of the employee. Even if the employee’s absenteeism is not justifiable, the employer is obliged to remind the employee of his/her duties and warn him/her.

In cases where the employee does not perform his/her duties even though he/she is reminded, endangers occupational safety, damages the employer more than thirty days’ wages, the employer, who has the right to terminate for just cause, is obliged to keep records that he/she reminded his/her employee of his/her duties, that his/her employee endangered occupational safety, that his/her employee caused him/her damage, and it is indisputable that all these defence, minutes and records of warnings are disciplinary records.

In terms of cases of termination for just cause, the employer, who has the possibility of termination due to the competence or behaviour of the employee, is obliged to investigate the reasons for such actions and behaviours of the employee, to take various measures to improve the behaviour or competence of the employee, to warn the employee, and the possibility of termination for the employer is accepted as possible only if no results are obtained from these means, that is, if termination is the last resort, and it is undisputed that the records of minutes, defence, warnings and actions in this regard are disciplinary records.

Again, all kinds of documents and records kept by the employer, who has the right to take disciplinary actions within the scope of workplace practices (Personnel Regulation; Disciplinary Regulation, etc.), employment contract or collective bargaining agreement, during the stages of such practices are also disciplinary records. It is also clear that all these records are also in the legitimate interest of the employer, who has the burden of proof, in order for the employer to fulfil its legal obligations and to protect the right.

Accident Minutes

In general terms, it is possible to define an occupational accident as an event that occurs in the workplace or due to the execution of the work and results in death or makes the worker mentally or physically disabled. When an occupational accident occurs, the employer is obliged to immediately notify the law enforcement authorities and the competent public authority within three working days. It is clear that accident reports should be kept in the workplace registry file in order for the employer to fulfil its burden of proof in lawsuits that may be filed by the competent authorities, the employee or the employee’s relatives or other relevant components of the accident.

Curriculum Vitae and Education Records

The first of the basic parameters for the employer to achieve the benefit that the employer wants to achieve by concluding an employment contract and employing a worker is that the employer employs a worker who is suitable for the job, and the first of the documents showing the suitability of the worker for the job is the curriculum vitae prepared by the worker himself and the educational records contained in the curriculum vitae. The fact that it is in the legal interest of the employer to include these records in the workplace registry file is known to everyone and it is certain that there are matters in accordance with the ordinary course of life that do not need to be proved separately.

For example, according to many provisions of the Labour Law, employers are obliged to provide occupational health and safety training to their employees regardless of the type of employment. In jobs where vocational training is compulsory, the employer is obliged to have these trainings taken and documented.

5.CONCLUSION

In addition to the obligations to organise the personnel file, employers have certain obligations regarding the processing and protection of personal data, which have been added based on the title of data controller within the scope of the LPPD.

While trying to explain the content of the personnel file, there is no drawback in the part of the personnel file that is based on the law, which is tried to be emphasised with the distinction between mandatory and necessary documents, and it can be sufficient for the employer to inform the employee. In the remaining part, it should be possible to apply a balance test between the interests of the employee and the employer, and to request other documents that will serve the employer’s burden of proof, provided that they do not touch the fundamental rights and freedoms of the employee.

In addition, it is important that the matters listed in the required documents section are requested only ‘when necessary’. The principle of conducting the process with only as much data as necessary, which is called data minimisation, should be adopted not only in the personnel file and/or human resources processes, but in all activities and organisations of the company.

To concretise with an example, if a person is not required to drive a vehicle in his/her job descriptions or if a vehicle is not allocated to provide fringe benefits as a company policy, not requesting a driving licence will constitute a behaviour in accordance with the principle of data minimisation.

In addition, procedural uniformity in matters such as the recruitment procedure and the creation of personal files is important as it will ensure that different individuals are not treated differently and the risk of violation of the prohibition of discrimination is eliminated.

Finally, all the contents of the personnel file included in this study include information, documents and records that are both general-personal-personal information and private-personal-health information of the worker, and all of them are listed under the scope of ‘personnel’.

It should be noted that health information is in the category of special categories of personal data within the scope of KVKK and is among the category of data that should be prevented from access by unauthorised persons within the scope of access authorisation. In this context, keeping all information, documents and records of the employee’s health under an external health file and carrying out the relevant processes by the workplace physician, if available in the company, is an action that will minimise the risk within the scope of KVKK.

The recommendations in this study have been written from a perspective that focuses on the elements that may pose a risk in the general filing systematic and the ideal that should be, without taking into account the personal-health file distinction.

On the Regulation Amending the Regulation on Distance Contracts
Biometric Data Processing Activity for Personnel Entry and Exits