Events
The applicant, who is an employee of a private company, works in a public hospital where this company provides services. After one of the institution managers saw the WhatsApp correspondence on the computer allocated to the applicant for his/her job and provided the contents of this correspondence, the applicant’s employment contract was terminated. jul.
As a result of the lawsuit filed by the applicant with a request to return to work, the court decided that the termination was invalid and the applicant was returned to work. In the appeal filed by the defendants’ deputies against the aforementioned decision, the district court of justice firmly decided to lift the court’s decision and dismiss the case.
Claims
The applicant claimed that his right to respect for private life and freedom of communication were violated due to the fact that his correspondence using the messaging program WhatsApp was examined by the employer and his employment contract was terminated on the grounds of these correspondence.
Evaluation Of The Court
It is necessary to examine the authority of the employer to supervise the communication of the employee within the scope of the positive obligations of the state in the context of the right to respect for private life and freedom of communication.
It has been observed that there is no special regulation in the Labor Code No. 4857 regarding the employer’s supervision of the communication tools available to the employee. 20 of the Constitution, however. and 22. with guarantees in substance the right to respect for private life and freedom of communication for labour law disputes in the implementation of the regulations that exist in our legal system is not an obstacle when it is given in the context of creating positive obligations can be said to have fulfilled the legal infrastructure.
First made on the computer that is allocated for use in the workplace communication can be controlled, and the conditions of use of communication tools in advance of a full and open disclosure in cases where it is not of fundamental rights and freedoms will be protected with the right expectations at the workplace workplace of the employees in the direction that you can do on the computer is a condition that can be foreseen in personal correspondence it should be emphasized that by the employer.
In the concrete case, it was understood that there was no clear information that the communication made by the employer through the computer allocated for use at the workplace could be monitored and audited. On the other hand, the applicant’s employment contract was terminated by citing WhatsApp messaging contents included in his private life field. However, the employer, as the respondent party, could not reveal the reasons and grounds for the intervention that could be considered legitimate in the trial process, that the applicant’s expectations were respected and his rights were taken into account, and that the applicant was informed about the intervention. In this context, during the termination proceedings, which is the main reason for private communication such as WhatsApp messaging program or communicate with computers to inform whether or not or degrees in business was done has not been discussed by the court, the applicant him / herself without his consent when the disclosure is made before alenilestirmed are being illegally accessed, and prior message content based on the direction it was understood that the claims are not met.
However, it is clear that the audit of the program in question, which is known to everyone and the employer that it relates to personal use in a concrete case, is contrary to the reasonable expectation of the applicant to protect the privacy of his private life and communications. Although it is publicly known that the mentioned program is a messaging program specific to personal use, no assessment has been made by the court as to how the correspondence contained in such a program is controlled, whether its contents are based on termination is necessary, and its impact on the communication with the applicant’s private life.
In addition, the employer could not make a healthy statement that he obtained the private messages on the applicant’s computer using a method that complies with the law. At the trial stage, it was understood that the messaging content that was the basis for termination from the respondent company’s proxy’s petition for response to the case was obtained by the supervisor responsible for leaving the applicant’s computer open. In this sense, it has been observed that the employer has not explained that there is a situation that requires access to the content of the applicant’s communication on his computer. However, in order to reach the same goal analysis of complaints and defenses of the parties with respect, to be listened to witnesses, the business records of the project process and the analysis of the results of the examination of one of the available tools such as compulsory and required by the employer why you’re the message content laid out in a clear manner this aspect of the case has not been discussed by the courts not as highly concrete.
Trial before the court by the applicant’s employer on the other hand, are evaluated as a whole in the process of correspondence and the correspondence of the contents of the consent of the employer contrary to the applicant’s friends and texting provides access to, and were the mainstay of the termination of employment of this content.
The Constitutional Court has decided that the right to respect for private life and the freedom of communication have been violated on the grounds described.