Summary of the Constitutional Court Decision dated 21.09.2022 with application number 2019/25604, published in the Official Gazette dated 15.11.2022 and numbered 32014

The subject of the application relates to the allegations of violation of the right to respect for private life and freedom of communication of the applicant, who continues his working life in a private company, upon the examination of his correspondence with his colleague via telephone by the employer and the termination of his employment contract on the grounds of these correspondences.

The applicant filed a lawsuit for reinstatement on 22.11.2017 at Istanbul Anatolian 7th Labour Court. He stated and defended that his employment contract was violated due to private messages, but a copy of the message content was not attached to the termination notice, that the employees also use the phones provided by the company in their private lives, that these correspondences are personal data and therefore should be protected.

The respondent company’s attorney stated that these mobile phones were examined in order to access the contact information of the customers, but the correspondence between the applicant and another employee was found and the content constituted a reason for termination. The court of first instance dismissed the case. The court emphasised that the contents of the messages could constitute just cause for termination and that the evidence obtained by the employer was in accordance with the law since the mobile phone was provided by the employer.

The applicant applied to the 30th Civil Chamber of Istanbul Regional Court of Appeals and his application was accepted on 28.05.2019. The Regional Court of Appeals ruled definitively to annul the court decision and dismiss the case.

In the reasoning of the decision, in addition to the reasoning of the first instance court, it was stated that in accordance with the Communication Tools Policies issued by the employer, the communication tools of the company (computer, telephone, GSM line and other) should only be used for work purposes and for work purposes and should not be used for private communication and business purposes, therefore, the examination of the mobile phone belonging to the company by the employer violates the confidentiality of private life and this evidence does not result in the conclusion that it was obtained unlawfully and the employee is prohibited from communicating with this phone for private purposes.

In addition to these assessments, the 30th Civil Chamber of the BAM also stated that the first instance court’s decision to terminate the employment contract for just cause when it should have accepted that the employment contract was terminated for valid reasons was erroneous and that this would constitute a violation of public order.

This case was examined by the 12th Constitutional Court at its meeting on 21. 09. 2022. The assessments were made on the basis of fundamental rights such as the right to privacy, freedom of communication under the Constitution and the European Convention on Human Rights.

It was emphasised that there should be justified and legitimate grounds for examining the communication tools allocated by the employer for the use of the employee, that the process of processing personal data should be carried out in a transparent manner and thus the employer has an obligation to notify the employees in advance, that the data to be used for the acceptance of a proportionate intervention should be limited to the purpose to be achieved, and whether the interests and rights between the employer and the employee conflict and whether they are balanced in a fair manner, taking into account the effect of this communication examination on the employee.

In the specific case, it was determined that the main reason for the detection of the correspondence was that the employee with whom the applicant corresponded left his job and returned the phone allocated by the company to the company after a while.

Against the reasoning of the Regional Court of Appeal regarding the Communication Tool Policy, the Constitutional Court stated that it did not discuss the authority to inspect and control the communication tools, the limits of use and whether the sanction for exceeding these limits was clearly regulated, whether the aforementioned document was notified to the employees within the scope of the obligation to inform, and that messaging programmes can also be used for personal purposes.

In terms of precedent, in the E.Ü and Samet Ayyıldız Constitutional Court Decisions, the Constitutional Court ruled on the violation of the interventions in the form of monitoring the content of the applicants’ corporate e-mail and personal WhatsApp account by the employer and termination of the employment contract on the grounds of these correspondences.

The applicant requested the determination of the violation, retrial and 2. 700,91 TL judgement costs as pecuniary compensation. It was stated that a decision should be made to pay the applicant a total of 10. 264,60 TL judicial expenses, consisting of 364,60 TL fees and 9. 900 TL attorney’s fees, which were determined from the documents in the file.

The Constitutional Court unanimously decided that the claim regarding the violation of the right to privacy and freedom of communication under Article 20 within the scope of the right to respect for private life was admissible and that these rights were violated, that a copy of the decision be sent to Istanbul Anatolian 7th Labour Court for retrial, that the applicant’s claim for pecuniary compensation be rejected, and that the applicant be paid 10. 264,60 TL of legal costs.

With this decision, it is understood that private conversations and correspondence made through the communication tools allocated by the employer to the employees do not constitute a ground for termination by the employer.

In order to constitute a ground for termination, the employer must fulfil its obligation of disclosure by stating that the employer has the authority to control these communication tools while allowing its employees to use the communication tools belonging to the company. In any case, as mentioned by the Constitutional Court, messaging programmes may be used for non-company purposes. This should not constitute grounds for termination due to the employer’s lack of reasonable benefit.