EVALUATION ON THE DECISION OF THE CONSTITUTIONAL COURT DATED 02.05.2023 AND APPLICATION NUMBER 2018/24097
With its decision dated 02.05.2023 and numbered 2018/24097, the Constitutional Court (“Constitutional Court”) ruled that the reinstatement lawsuits of the applicants, whose contracts were terminated as a result of the statements in the leaflet they distributed at the workplace and the events that occurred during the protest they organised, were rejected, which violated the “freedom of expression”
1. Subject and Grounds of Application
In the case in question, the applicants stated that they had left a leaflet in the lockers of female workers, exposing and disclosing the heavy exploitation and working conditions at the workplace, working conditions contrary to occupational health and safety, such as poor and unhealthy food, and the actions and behaviour of supervisors harassing female workers. At the workplace, during an ergonomics exercise within the scope of occupational health and safety, the second applicant made statements similar to those in the leaflet and the first applicant stood next to the second applicant throughout the conversation. In the report kept on this incident and the subsequent actions, it was stated that the second applicant punched the Production Manager in the back when he told them that they should stop their actions.
The first applicant filed a lawsuit for reinstatement and union compensation; the applicant’s witness confirmed the allegations of harassment and mobbing against the female workers. As a result of the lawsuit, it was decided that the termination of the employment contract was invalid, the applicant was reinstated and the claim for union compensation was rejected on the grounds that the notice left in the lockers of the workers did not contain a reason for the justified or valid termination of the contract, the first applicant was not the person who committed the act of hitting, he only stood next to the second applicant for support during the conversation and therefore did not have any word or action in the relevant incident.
As a result of this decision, which was appealed by the employer to the Court of Appeal, it was stated that the first applicant used the expressions “liar, agent who sold his friends” for the employer, “suck-up” for some workers, and accused the foreman and production manager of harassing female workers in the leaflet distributed, and that these expressions were words touching honour and honour and unfounded accusations, It was decided to dismiss the lawsuit for reinstatement and trade union compensation on the grounds that the peace at the workplace was disrupted due to the insulting nature of these actions to the employer and workers, and that the tension between the workers led to termination for just cause.
The second applicant filed a lawsuit for reinstatement; the applicant’s witness confirmed the allegations of harassment and mobbing, as did the first applicant’s witness. The court ruled that the termination of the second applicant’s employment contract was invalid and that he should be reinstated on the grounds that there was no membership registration slip indicating that the second applicant and the workers were members of any trade union and that the existence of an authorisation procedure initiated by any trade union could not be established, and that the applicants’ reading of leaflets and short-term protests, even for the purpose of trade union organisation, could not lead to justified or valid termination.
As a result of this decision, which was appealed by the employer to the Court of Appeal, it was decided to dismiss the lawsuit on the grounds that the employee’s statements and behaviour were grounds for justified termination as they fell within the scope of subparagraphs (b) and (d) of sub-heading (II) of Article 25 “Employer’s Right to Terminate Immediately for Just Cause” of the Labour Law No. 4857 (“Labour Law”) and that the employee could not rely on the freedom of expression in such cases.
The second applicant appealed the Court of Appeal’s judgement, but the Court of Cassation rejected the appeal on the grounds that there was no error in the judgement and upheld the judgement as final.
As a result of the judgements, the applicants,
of their right to a judicial review on the grounds that their complaint that the termination of their employment contract was not carried out in accordance with the law was not argued before the Court of First Instance,
As a result of the termination of their employment contract due to their actions falling within the scope of freedom of expression, their freedom of expression,
The termination of their employment contract due to their trade union activities and the denial of trade union rights due to not receiving trade union compensation,
They made an individual application to the Constitutional Court claiming that their labour rights were violated when their employment contract was terminated and their request for reinstatement was rejected.
Along with these allegations, the applicants argued that the incident in which they exposed and disclosed the actions and behaviours of supervisors harassing female workers should be examined within the framework of the concept of whistle-blowing.
The Constitutional Court examined the application within the scope of freedom of expression.
2.Constitutional Court’s Review and Conclusion
The Constitutional Court made an assessment regarding the applicants’ claim that their freedom of expression was violated by the termination of their employment contracts:
The applicants’ employment contracts were terminated in violation of Article 25 (II) (b), (d), (e) and (h) of the Labour Law entitled “Employer’s Right to Terminate Immediately for Just Cause”. (b), (d), (e) and (h) sub-paragraphs of sub-heading (II) of Article 25 of the Labour Law titled “Employer’s Right to Terminate Immediately for Just Cause”, the courts of appeal accepted the first applicant’s making allegations against the employer and other employees in the notice that would touch honour and honour, and the second applicant’s punching the Production Manager as just cause for termination, and assessed that the termination was made for the just cause stipulated in sub-paragraphs (b) and (d), and the examination subject to the application was made only within the scope of these sub-paragraphs,
In the doctrine and practices of the Court of Cassation in the Turkish Labour Law, the principle of termination as a last resort is adopted, this principle comes to the fore in the cases of valid termination stipulated in Article 18 of the Labour Law, and it is the basis of the institution of immediate termination for just cause. According to the Court of Cassation, in the presence of just cause, it is necessary to evaluate whether the termination is the last resort or not, in case the employer demonstrates just cause, the termination of the contract is the only remedy since there is no possibility to continue the employment relationship, and the termination of employment contracts due to discourses and behaviours within the protection area of fundamental rights and freedoms will cause a deterrent effect on workers and others,
That it was not possible to infer a concrete accusation targeting any person from the statements made in the leaflet left in the workers’ locker and the subsequent events, and that the assessment of the Court of First Instance against the first applicant lacked reasonable grounds and was rather sloppy, since the term “liar” did not appear in the leaflet,
The expressions “suck-ups” and “agents who sell their friends” in the leaflet are rhetorical expressions that attempt to increase the impact of the call for organisation by addressing possible obstacles in the unionisation process, given that the leaflet is not intended to insult workers,
In the evaluation made as a result of the request of the applicants to examine the incident in which they exposed and disclosed the actions and behaviours of supervisors harassing women workers within the framework of the concept of whistle blowing, it was stated that this concept, which is expressed as the employee’s reporting and publicising to the competent authorities inside or outside the workplace the unlawful acts or events that cannot be considered legitimate, and which is accepted as “whistle blowing” in the doctrine, does not need to be discussed since the purpose of distributing the leaflet is not to mobilise the authorities but to mobilise the workers with a sense of solidarity,
Although the accusation that supervisors engage in acts and behaviours aimed at harassing women workers cannot be considered as bullying other workers if it is true, considering that the main purpose of this discourse is to persuade women workers to organise in order not to be subjected to inappropriate behaviour, especially by their supervisors, because of their gender, even if it does not constitute a crime, it is beneficial to the public, in making their assessments, courts should not lose sight of the potential for discriminatory practices and inappropriate behaviour, particularly by supervisory personnel, to have a severe impact on women’s lives and of the difficulties women face both in losing their jobs and in seeking their rights individually due to social sensitivities and sociocultural factors,
The Court of Appeal did not take into account the witnesses corroborating the allegations of sexual harassment, and the reasoning of the Court of Appeal in dismissing the first applicant’s case was not relevant and sufficient, given the sensitivity of the case for the parties,
It was stated that the Court of Appeal reached a conclusion without seeing the totality of the events and without making a fair balancing between the conflicting interests, since it did not reveal with a relevant and sufficient justification that there was a situation that the second applicant’s act of punching the Production Manager gave rise to a unilateral liability that would lead to the termination of the second applicant’s contract with just cause.
In line with the above-mentioned explanations, the Constitutional Court decided that the applicants’ freedom of expression in the light of the right to freedom of association was violated on the grounds that the Court of Appeal failed to provide a relevant and sufficient justification to establish a fair balance between the applicants’ freedom of expression and the aim of ensuring discipline, order and labour peace in the workplace.
