Violation Of The Right To Respect For Private Life And Freedom Of Communication Due To Termination Of Employment Contract On The Grounds Of Correspondence Made By Using Messaging Programme
Events
The applicant, an employee of a private company, was working at a public hospital to which this company provided services. The applicant’s employment contract was terminated after one of the managers of the institution saw the WhatsApp correspondence on the computer allocated to the applicant for his duty and obtained the contents of these correspondence.
As a result of the lawsuit filed by the applicant for reinstatement, the court decided on the invalidity of the termination and the reinstatement of the applicant. In the appeal application made by the defendants’ attorneys against the aforementioned decision, the regional court of appeal decided to annul the court decision and dismiss the case.
Allegations
The applicant claimed that his right to respect for private life and freedom of communication were violated due to the employer’s examination of his correspondence using the messaging programme WhatsApp and the termination of his employment contract on the grounds of these correspondence.
The Court’s Assessment
It is necessary to examine the authority of the employer to monitor 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.
Labour Law No. 4857 does not contain a special regulation regarding the employer’s control of the communication tools made available to the employee. However, considering that the guarantees regarding the right to respect for private life and freedom of communication in Articles 20 and 22 of the Constitution and the existing regulations in our legal system are not an obstacle to the application of the regulations in labour law disputes, it can be said that positive obligations have been fulfilled in terms of creating a legal infrastructure.
First of all, it should be emphasised that it is a situation that can be foreseen by the employer that the employee can make personal correspondence over the workplace computer with the justified expectation that his fundamental rights and freedoms will be protected at the workplace in cases where the communication made through the computer allocated for use in the workplace can be monitored and where the conditions of use of communication tools are not fully and clearly informed in advance.
In the concrete case, it is understood that the employer did not provide any explicit information that the communication made through the computer allocated for use in the workplace could be monitored and supervised. On the other hand, the applicant’s employment contract was terminated on the grounds of WhatsApp messaging content, which is included in the private life area. However, the employer, as the defendant party, failed to demonstrate the legitimate reasons and grounds for the intervention during the proceedings, that the applicant’s expectations were observed and his rights were taken into account, and that the applicant was informed about the intervention.
In this context, it is understood that the courts of first instance did not discuss whether such a notification was made regarding communication with the WhatsApp messaging programme or private communication on workplace computers, which constituted the main reason for the termination during the trial process, and that the applicant’s substantive allegations that the contents of the messages were unlawfully accessed without his consent and without prior notification, although he did not make them public, were not met.
Moreover, in the concrete case, it is clear that the inspection of the programme in question, which is known by everyone and the employer to be for personal use, is contrary to the reasonable expectation of the applicant for the protection of his private life and the confidentiality of his communication. The court did not make any assessment as to how the correspondence contained in such a programme was inspected, whether it was necessary to take its contents as a basis for termination, and its effect on the applicant’s private life and communication, despite the fact that it was publicly known that the programme in question was a messaging programme for personal use.
In addition, the employer could not provide a sound explanation that the private messages on the applicant’s computer were obtained by a lawful method. At the trial stage, it was understood from the reply petition of the defendant company’s attorney that the content of the messages on which the termination was based was obtained by the applicant’s supervisor, who was responsible for the applicant’s computer as a result of leaving it switched on. In this sense, it was observed that the employer did not explain that there was a situation that necessitated access to the content of the communication on the applicant’s computer.
However, although there are tools such as analysing the complaints and defences of the parties, hearing the witnesses, examining the workplace records and the processes and results of the projects carried out in order to achieve the same purpose, the employer has not clearly demonstrated why the examination of the contents of the messages is deemed obligatory and necessary, and the courts of appeal have not discussed the concrete case in this respect.
On the other hand, when the correspondence of the applicant submitted by the employer to the court and the judgement process are evaluated as a whole, it is seen that the employer accessed the content of the correspondence against the consent of the applicant and his friends with whom he exchanged messages, and these contents were used as the basis for the termination of his employment contract.
For the reasons explained, the Constitutional Court decided that the right to respect for private life and freedom of communication were violated.
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