1) Concept and Elements of Mobbing (Psychological Harassment):
Mobbing, or psychological harassment as commonly used in Turkish legal literature; is a whole set of negative behaviors directed at a targeted specific employee by one or more persons at the workplace, carrying a systematic, intentional, and intimidating purpose. This act is a dangerous process that directly damages “personal rights,” which fall under the heading of strictly personal rights protected under constitutional guarantees. Not every disagreement, every tension, or every negative criticism from a manager occurring in working life can be qualified as mobbing; for the behaviors in question to constitute the nature of mobbing, it is mandatory that they be repeated systematically, contain a hostile intent, and carry the purpose of alienating the employee from work or forcing them to resign. Therefore, even if an instantly developing single tortious act gives rise to criminal or legal liability within itself, it cannot be called psychological harassment since it essentially does not contain a projection strategy spread over time.
1.1) Typical Behavior Patterns Constituting Mobbing:
Although the act of mobbing in workplaces is generally applied to subordinates by managers with hierarchical superiority (vertical mobbing), in some cases it may also occur in the form of employees at equal positions applying it to each other (horizontal mobbing) or subordinates uniting and taking a stance against the manager (vertical-upward/reverse mobbing). It is established that mobbing acts frequently encountered in practice and aimed at intimidating the employee materialize with the negative attitudes given below:
- Obstruction of Communication and Social Isolation (Exclusion): Isolating the employee in the work environment, constantly interrupting their speech, cutting off their social relations, separating their room from other employees, and acting as if they do not exist in the environment.
- Attacks on Reputation: Consciously ignoring successful work done, subjecting the employee to constant and unfair criticism, spreading groundless rumors about the employee, or making implicit harassment based on the person’s religion, political view, or ethnic origin.
- Preventing the Maintenance of Professional Status: Unfairly questioning and humiliating the employee’s competence and professional adequacy in front of the public, taking away important projects in their hands without justification.
- Relegation to Passive Duties (Shelving) and Employment Abuse: Giving duties that have no connection with the person’s field of expertise and are physically impossible to perform, or on the contrary, assigning unskilled and meaningless tasks far below their education level, causing the person to fall into a passive state.
1.2) The Principle of “Prima Facie Proof” (Approximate Proof) in Proving Psychological Harassment in Light of Court of Cassation Jurisprudence:
In mobbing processes that ultimately become the subject of a labor lawsuit, expecting the victim to prove that they were subjected to psychological harassment with evidence beyond a shadow of a doubt creates a clear contradiction with the principles of “interpretation in favor of the employee” and “protection of the employee,” which are the most fundamental building blocks of labor law doctrine. Indeed, absolute proof of this attrition policy conducted behind closed doors in environments where witnesses also remain silent out of fear of the manager is also contrary to the ordinary course of life.
However, a very critical point needs to be added: According to the established jurisprudence of the Court of Cassation, full proof is not sought in mobbing lawsuits; presenting a ‘prima facie proof’ (approximate proof) as a result of consistent indications put forward by the employee is accepted as legally sufficient. Once the plaintiff employee presents evidence that awakens a justified suspicion of being subjected to mobbing, the burden of proof that mobbing was not applied in the workplace shifts (by changing places) onto the employer.
1.3) Methods of Recording and Gathering Evidence in the Mobbing Process:
Gathering data that will substantiate claims and instill a conviction of prima facie proof in the court panel when applying to judicial authorities with a claim of mobbing directly affects the course of the process. It is possible to list the evidentiary tools that will strengthen the hands of the employee in the position of complainant or plaintiff in the legal process as follows:
- Digital Traces and Correspondence: Mobbing-content emails sent by the supervisor or other persons applying mobbing, official revision requests, WhatsApp messages, corporate chat program records, and written transcripts of orders outside the job description.
- Medical and Psychological Health Reports: Psychiatrist or psychologist records of psychological support received due to the systematic pressure experienced, hospital reports regarding the diagnosis of depression, insomnia, or anxiety developing due to stress at the workplace, and prescriptions regarding medications used.
- Chronological Journal Log: Personal journals where the date, time, location, and content of events are noted fresh off the press with clarity leaving no room for doubt.
- Witness Statements: Verbal statements to be given before the court by co-workers who directly or indirectly witnessed the events in the workplace, or former employees who left the job.
Namely; to the extent that an employee subjected to mobbing can concretize the process experienced and present it before judicial authorities with an explanation fitting legal logic, they will benefit from legal protection at the highest level.
2) Rights of the Employee in the Face of Mobbing:
In the Turkish legal system, there are multiple legal grounds protecting the employee against the act of mobbing. Primarily pursuant to Article 417 of the Turkish Code of Obligations No. 6098, it is explicitly stipulated that the employer is obligated to protect the personal rights of the employee, establish an order in the workplace in accordance with the principles of honesty, and prevent employees from being subjected to psychological harassment. In case the employer acts contrary to this statutory duty of supervision and protection, there are legal remedies to which the employee can apply:
- Right to Justified Termination and Severance Pay: The employee may immediately terminate the employment contract by citing the mobbing acts exposed to pursuant to sub-paragraph “Cases not complying with ethics and good faith and similar cases” in Article 24/2 of the Labor Law No. 4857. As a result of this justified termination, the employee becomes entitled to severance pay if the conditions are met.
- Claim for Material and Moral Compensation: An employee whose psychological or physical integrity is harmed or whose career is damaged due to mobbing has the right to demand serious amounts of material and moral compensation from the employer based on general provisions via reference of TBK Art. 417.
- Bad Faith Compensation and Discrimination Compensation: If the acts of psychological harassment at the same time constitute a violation of the principle of equal treatment in Article 5 of the Labor Law, discrimination compensation; and for employees not under job security coverage, in case of abuse of the right of termination, bad faith compensation according to Labor Law Article 17 will come onto the agenda.
Frequently Asked Questions (FAQ)
Q1-) If I secretly record conversations at work on my phone to prove the mobbing incidents I experience, are these records considered legal evidence in court?
A1-) In criminal law and civil proceedings, secret voice recordings are, as a rule, considered unlawful evidence. However, according to exceptional decisions of the Court of Cassation; in instantly developing situations where a person has absolutely no other possibility of proving a crime or tort committed against them (such as mobbing, insult, threat), recordings made without a planned setup and for the purpose of preventing loss of evidence can be accepted as evidence by the court. Nevertheless, while resorting to this method, the legitimate boundary must not be exceeded, and the situation must be meticulously evaluated.
(Court of Cassation 12th Criminal Chamber, E. 2013/22599, K. 2014/12706, D. 26.05.2014)
In instantly developing situations where a person has no possibility of obtaining evidence again and no opportunity to apply to competent authorities—for example, when a crime being committed against them (such as sexual assault, insult, threat, slander, or blackmail) is in question, or to prevent an unjust attack directed at themselves or their family unity that damages their honor, by preventing evidence with the possibility of disappearing from being lost and securing it by submitting it to competent authorities—it is not possible to accept that acts of reading information belonging to private life, listening to, monitoring, or recording conversation and communication contents or sound and images relating to private life, recording, acquiring, and disseminating personal data without the knowledge and consent of the attacking party are unlawful, nor can it be mentioned in these cases that the person acted with the awareness of acting unlawfully; therefore, the crime of listening to and recording conversations between persons has also not occurred.
Q2-) Is it mandatory to leave work to file a compensation lawsuit due to mobbing? Can a lawsuit be filed while working?
A2-) It is not mandatory to leave work to file a compensation lawsuit due to mobbing; employees can also file a lawsuit while the employment relationship continues. However, if mobbing is established or the employment contract is terminated for justified reason on this ground, severance pay may arise. Before filing a lawsuit, there is a legal obligation to apply to a mediator.
Q3-) When an employee subjected to mobbing directly notifies the top management or HR unit in writing by bypassing internal company hierarchy to protect their legal rights, can the employment contract be terminated for justified reason by the employer?
A3-) An employee’s right to make their voice heard, complain, and request rectifying the situation against psychological harassment is a constitutional and legal right. Since the employer has an obligation to supervise and protect the employee pursuant to Article 417 of the Turkish Code of Obligations, the employer qualifying this justified pursuit of the employee as “disobedience” or “violation of company hierarchy” and terminating the employment contract is legally completely invalid. On the contrary, this notification will become a strong tool of prima facie proof in a lawsuit to be filed by the employee in the future, proving that the employer was aware of the situation but did not take measures.
Q4-) If systematic pressures constituting mobbing are carried out outside official working hours and workplace boundaries, for example, through constant scolding from weekend WhatsApp groups or midnight calls, can a compensation lawsuit be filed due to mobbing?
A4-) Yes, it can be filed. With the integration of technology into working life, acts of psychological harassment have now exceeded the physical boundaries of the workplace. For an act to constitute mobbing, it is not mandatory that it occur in the company building; it is sufficient that it stems from the employment relationship and aims to disrupt the mental integrity of the employee. Digital interventions of this systematic, intimidating, and continuous nature outside working hours are digital mobbing indications that are easiest to prove and directly accepted before courts.
Q5-) My psychology deteriorated due to systematic pressures I was subjected to at the workplace and I had to resign. How long after leaving work can I apply to judicial authorities to file a mobbing lawsuit? Is there a specific statutory limitation period?
A5-) It is 2 years for non-pecuniary (moral) compensation, and 5 years for material compensation and receivables. Filing the lawsuit at the latest within 2 years from your resignation date is the safest way.
Q6-) Can a non-pecuniary compensation lawsuit be filed directly personally (against the individual) against the manager or co-worker applying mobbing, or is the party to the lawsuit in any case the company (employer)?
A6-) Ultimately in the labor law dimension of the incident, the main party responsible is the employer (company), who is obligated to maintain order in the workplace and protect their employee. However, if the acts of the person applying mobbing constitute a crime under the Turkish Penal Code (insult, threat, harassment) or carry the nature of a direct severe attack on personal rights, the employee legally has the right to file a compensation lawsuit in general courts either together against both the employer and the person personally carrying out the act, or directly against the individual themselves if they so wish.
Q7-) When an employee benefiting from job security under the scope of the Labor Law is forced to resign under mobbing pressure, can they file a “Reinstatement Lawsuit”?
A7-) Namely, resignations realized by impairing the employee’s intent—that is, by forcing them to submit a petition under systematic pressure—are accepted before law not as a real “resignation”, but as an unfair “termination” carried out by the employer. Therefore, an employee who cannot endure and has to resign as a result of mobbing can file a lawsuit within the statutory period with the demand for invalidity of termination and reinstatement, provided they demonstrate before court with the prima facie proof criteria we mentioned above that this situation was mobbing (forcing to resign). The moment the court determines mobbing, it rules for the invalidity of termination, reinstatement of the employee, and job security compensations if not re-employed.
Precedent Decisions Regarding the Issues We Have Detailed Above
COURT OF CASSATION DECISION – 9TH CIVIL CHAMBER, E. 2014/2273, K. 2014/14184, D. 05.05.2014
“In the concrete dispute, although it was decided by the court to reject the lawsuit on the grounds that the plaintiff was not sincere in the request for reinstatement by not accepting the invitation to work made by the defendant employer… the invitation to work made while litigation was ongoing is not valid. Furthermore, it could not be proven by the defendant that the termination was justified or valid either. For these reasons, while the plaintiff employee’s request for reinstatement should have been accepted, it was erroneous to decide on rejection with an erroneous evaluation… It was decided to OVERTURN AND VACATE the court’s decision, to rule for INVALIDITY of the termination and REINSTATEMENT of the plaintiff…”
- COURT OF CASSATION DECISION – 22ND CIVIL CHAMBER, E. 2013/693, K. 2013/30811, D. 27.12.2013
“Severe violation of personal rights is not required for the existence of mobbing, unfairness directed at personal rights is sufficient, and furthermore, definitive evidence beyond a doubt is not sought in mobbing claims; it is sufficient for the plaintiff employee to put forward facts that awaken suspicion that mobbing was applied to them in the workplace, the burden of proof that mobbing did not occur in the workplace falls upon the defendant; deciding in written form without evaluating witness statements, health reports, expert reports, camera records, and all other evidence that the claim of mobbing was proven with sufficient evidence is erroneous and required reversal.”
- COURT OF CASSATION DECISION – ASSEMBLY OF CIVIL CHAMBERS (HGK), E. 2012/1925, K. 2013/1407, D. 25.09.2013
“Psychological harassment (mobbing) in Turkish Law; has been expressed as all kinds of bad treatment, threat, violence, humiliation, and similar behaviors applied systematically and repeatedly to employees in the workplace by other employees or employers… For an action to be accepted as psychological harassment, it must be performed by targeting an employee, spread over a certain period, and this situation must take a systematic state… Although reasons for psychological harassment vary, the purpose is most often to ensure that the employee leaves the workplace… Such being the case; while the local court ought to have complied with the Special Chamber reversal decision also adopted by the General Assembly of Civil Chambers, insisting on the previous decision is contrary to procedure and law.”
- COURT OF CASSATION DECISION – 9TH CIVIL CHAMBER, E. 2016/17837, K. 2019/1001, D. 15.01.2019
“Events constituting mobbing recounted by the employee must exhibit consistency, and a strong indication must be present… Pushed limits of rules of proof led to new searches in procedural law. Indication is precisely a result of this understanding. Proof materializes with the conclusion to be given when taking typical course of events and rules of experience into account. In another expression, this is first-appearance proof… In the concrete dispute, although the lawsuit was rejected by the Court with the justification written above, the decision’s justification is abstract and insufficient. Evaluating allegations and evidence of the plaintiff, whether there was a systematic pressure in light of the principles above was not demonstrated with justifications, and the decision is unreasoned in this sense. Therefore, it was necessary to reverse the decision.”
- COURT OF CASSATION DECISION – 4TH CIVIL CHAMBER, E. 2016/5195, K. 2016/8293, D. 23.06.2016
“In Article 129/5 of the Constitution, it was adopted that compensation lawsuits arising from faults committed by civil servants and other public officials while exercising their powers can only be filed against the administration. However, this rule is not absolute; it is limited to the area of exercising administrative powers, in equal expression, behaviors that have not lost the quality of administrative acts and actions. Especially in tortious acts (de facto path); the public official has no possibility of benefiting from this guarantee of the Constitution… In the concrete incident, the plaintiff stated that the defendants conducted mobbing systematically and by acting jointly… acting purely with personal fault. It is not possible to evaluate lawsuits based on this assertion within the scope of Article 129/5 of the Constitution either. For the explained reasons, it should be adopted that hostility can be directed at the defendants and the merits of the matter should be examined… The judgment was not seen appropriate for explained reasons and required reversal.”
- COURT OF CASSATION DECISION – 22ND CIVIL CHAMBER, E. 2013/11788, K. 2014/14008, D. 22.05.2014
“In the concrete incident, it is understood that the alleged unfair, rude, and offensive behaviors were also committed toward other employees, that there was workplace rudeness in the general sense, and that the personality and dignity of employees were offended… In the incident subject to lawsuit, although it is possible to say that mobbing did not occur in terms of its elements, it must be accepted that the employer violated the obligation to ensure occupational health and safety, and on the other hand, acted contrary to the duty of care and protection toward the employee because they did not prevent the attack on personal rights and caused it, and that this situation gives the employee the opportunity to terminate the employment contract for justified reason… While severance pay should have been ruled by accepting that the employment contract was terminated justly by the employee, deciding in written form is erroneous and required REVERSAL.”