MOBBING

1. INTRODUCTION

Mobbing, also known as psychological harassment in the workplace, is a systematic and malicious attack aimed at harassing, ostracizing, and socially isolating the victim employee. Mobbing, which was defined in the international literature in the 1980s, has been accepted as a separate concept in our country for the last 20 years and is the subject of court decisions.

In the first part of this three-part article series, we define the elements of mobbing and talk about the legislation and its appearance and applications in different areas of Turkish law. In our work, we tried to explain the topics with examples and references to high court decisions. You can find the sources we used at the end of the article.

We hope that this trilogy on mobbing will be useful for everyone interested in the subject, especially our colleagues.

2. WHAT IS MOBBING ?

The person who first conceptualized and used the term "mobbing" in the workplace was the Swedish doctor Heinz Leymann. Based on Leymann's work, the International Labour Organization (ILO) first included the concept of mobbing and its elements in its 1988 report "Violence at Work".

The report prepared by the Turkish Grand National Assembly Women's and Men's Equal Opportunities Commission defines mobbing as "a psychological and even physical aggressive behavior applied to the person's self-confidence with the aim of intimidating the employee in a systematic way and with a frequency that shows continuity. In other words, it is to force, intimidate and discourage a person or a group of people in the workplace to absolute obedience by ostracizing, verbally or physically abusing a person they declare as an unwanted person."

Mobbing can be committed by employees of the same status against one or more employees, as well as by employees or managers with a superior-subordinate relationship. Former is called "horizontal mobbing" while the latter is called "vertical mobbing".

Based on this definition, whether a behavior is mobbing or not is evaluated according to the following elements:

A. Mobbing Can Only Be Committed in a Workplace

In order for a behavior to be considered mobbing, the victim and the perpetrators must be working in the same workplace. Here, the concept of workplace is not limited to the physical environment where the work is done. If the parties work within the same work organization and hierarchy, the workplace element is considered to have been met.

For example, if a worker is constantly subjected to belittling and derogatory words via telephone, message or e-mail while on work trips or if a worker is not invited to events held outside the workplace, this can be considered mobbing. Similarly, it is possible for a worker in a branch of a company to be mobbed by their superiors working in the head office at a different address.

On the other hand, actions coming from third parties who do not work in the same workplace, even if this person is a customer or business partner who constantly visits the workplace, cannot be considered mobbing.

B. Abusive, Depreciative and Deragatory Behaviour

Behaviors that constitute mobbing are humiliating, degrading, and belittling, undermining the employee's character, beliefs, values, work, and abilities. In addition to actions such as insulting, humiliating, and using disparaging remarks about the employee in front of others, behaviors such as giving an employee a smaller raise than other employees in the same position without justification, constantly pressuring the employee to work overtime, constantly criticizing the work, forcing the employee to do work below their qualifications and abilities, constantly changing the employee's workplace, spreading gossip behind the employee and excluding the employee from workplace events are also considered mobbing, provided that other elements are also present.

The behaviors that constitute mobbing are not defined in detail by law. In order for a behavior to be considered mobbing, the employee must feel humiliated, their self-esteem and self-confidence must be damaged, they must doubt themselves and their work and must be socially isolated.

Mobbing victims can experience social problems such as withdrawal and lack of self-confidence and self-esteem, as well as much more severe physical ailments and mood disorders such as depression and even suicidal tendencies. There have even been cases of employees who committed suicide as a result of the mobbing they were subjected to.

It is important to note that for mobbing to be considered, these behaviors must reach a certain level of severity. Not every criticism of the employee, rude or unkind behavior can be considered mobbing.

C. Constant and Systematic Attacks

Behaviors that constitute mobbing must be carried out systematically over a certain period of time with a certain frequency and intensity. The exact duration and frequency will be evaluated specifically for each case, but legal writings and practices suggest the duration to be between 3 and 6 months, and the frequency to be about once a week or more.

It is observed that the frequency of these behaviors increases over time, as the victim of mobbing becomes socially and psychologically vulnerable.

Isolated behaviors that are not repeated often or haven't continued for a sufficiently long time cannot be classified as mobbing. These behaviors may be considered a violation of personal rights or a reason for the employee to terminate the employment contract with cause, but not mobbing.

“A few unjust, rude, discourteous, or unethical behaviors that are not continuous, do not recur frequently at regular intervals, and occur occasionally as isolated incidents cannot be qualified as mobbing. Even if it is assumed that the behaviors that the plaintiff employee was subjected to in the concrete case are constant, they do not constitute the phenomenon of mobbing in terms of their elements, although they may necessitate the termination of the employment contract by the employee with a justifiable reason” (Supreme Civil Court Ruling - Y. 22. HD. E. 2014/3426 K. 2014/4165 T. 27.02.2014)

D. Willful Intent in Mobbing Behaviour

The perpetrators of mobbing must be acting knowingly and willingly. The purpose of these behaviors is always to wear down the victims, undermine their personality and dignity, isolate them, and psychologically destroy them. While the aim is making the employee quit, the outcome is not mandatory.

In this context, an employer repeatedly warning an employee about his/herperformance, parties raising their voices at each other in a stressful moment or an employee who isn't close to colleagues not being invited to every event cannot be considered mobbing.

E. Power Inbalance Between Parties

In order for mobbing to be considered, the victimized employee must be in a position where they cannot defend themselves. Victimized employee may have the ability to fend off systematic attacks against them through laws, employment contracts, or workplace rules. For example, an employee may refuse a illegitimate workplace change or demotion, based on Article 22 of the Labor Law. If the employee accepts these changes without exercising this right, mobbing can no longer be considered to exist.

"It should also not be overlooked that the plaintiff, who claims to have been demoted, had the right to refuse the assignment if the working conditions were fundamentally changed in accordance with Article 22 of the Labor Law No. 4857, but continued to work in the aforementioned job without any objection." (Supreme Civil Court Ruling - YHGK., E. 2016/1427 K. 2021/53 T. 09.02.2021)

3. MOBBING IN TURKISH LAW

The definition of mobbing, the behaviors that constitute mobbing, and its place in the legal field have been explained in detail above. However, mobbing and the behaviors that constitute mobbing affect multiple areas of Turkish law. Below, the appearance and applications of mobbing in Turkish Labor Law, Administrative Law, Criminal Law, and Tort Law will be explained.

A. Mobbing in Turkish Labor Law

In the Turkish Labor Law system, the provisions protecting employees against mobbing are regulated in multiple legal texts. The first of these is the provision of Article 417 of the Turkish Code of Obligations, "The Employer's Duty to Supervise the Employee", which states that "The employer is obliged to protect and respect the personality of the employee in the employment relationship and to ensure an order in the workplace in accordance with the principles of honesty, and in particular to take the necessary measures to prevent employees from being subjected to psychological and sexual harassment and to prevent those who have been subjected to such harassment from further harm."

Article 5 of the Labor Law "The principle of equal treatment" stating "No discrimination can be made in the employment relationship based on language, race, color, gender, disability, political opinion, philosophical belief, religion and sect and similar reasons." prohibits the employer from treating employees differently without an objective reason.

As explained in detail above, mobbing can be committed either through direct attack or through the employee being treated differently from other employees without justification. Of course, the existence of isolated events contrary to equality cannot be considered as mobbing. Likewise, even if the applications contrary to the principle of equality lead to mobbing if the elements are formed, discrimination compensation cannot be awarded unless it is proven that discrimination was made on the grounds of "language, race, color, gender, disability, political opinion, philosophical belief, religion, etc." in the first paragraph of the article.

As explained in detail above, mobbing can be committed either through direct attack or through unequal treatment without a justifiable cause. Existence of isolated events contrary to equality principle cannot be considered as mobbing. Likewise, even if the applications contrary to the principle of equality lead to mobbing discrimination compensation cannot be claimed unless it is proven that discrimination was made on the grounds of "language, race, color, gender, disability, political opinion, philosophical belief, religion, etc." in the first paragraph of the article.

"Based on the file contents and the plaintiff's claims, it is understood that the plaintiff's request for compensation for the defendant's actions, which are claimed to be contrary to the principle of equal treatment in Article 5 of Law No. 4857, is not within the scope of the requested compensation and the conditions for entitlement to this compensation have not been met. According to the contents of the file, the defendant employer's actions, such as not giving the plaintiff a gift on Women's Day and not remedying the lack of a phone and laptop, and all other events experienced by the plaintiff constitute the elements of mobbing." (Supreme Civil Court Ruling - Y. 22. HD., E. 2014/30716 K. 2016/4938 T. 23.02.2016)

According to Article 24 of the Labor Law, an employee who is subjected to mobbing can immediately terminate their employment contract with a legitimate reason and demand severance pay and all other labor claims. The Supreme Court of Appeals also rules that in cases where it is determined that the employee was forced to resign due to mobbing, severance pay should also be accepted.

"After a joint evaluation of the evidence in the file, it is understood that the employee was assigned to Istanbul from Ankara indefinitely, emphasizing the importance of the employee's expertise and the Istanbul workplace. However, it was determined that the employee was not given tasks appropriate to their experience and position in the new workplace, and that they were rendered passive, and that a perception of "useless personnel" was created in the workplace. It is also understood that mobbing was applied to the plaintiff employee in this way in order to ensure that they left the job of their own accord. The plaintiff employee, who was subjected to mobbing, terminated their employment contract. In this case, it is clear that the employee is entitled to severance pay. As for the request for notice pay, although the termination was made by the employee, it is determined that the employee's will was directed towards termination as a result of the mobbing applied by the employer, therefore the employee is also entitled to notice pay." (Supreme Civil Court Ruling - Y. 22. HD. E. 2015/11958 K. 2016/15623 T. 31.05.2016)

B. Mobbing in Administrative Law

Employees working in public institutions and organizations can also be victims of mobbing. In the public sector, personnel records, promotion and disciplinary procedures are generally at the discretion of the superiors, and unlike the private sector, job change opportunities are also quite limited. In fact, mobbing in the public sector usually occurs in the form of frequent disciplinary investigations against the civil servant, unnecessary appointments, and assignments unrelated to the job. Since civil servants are obliged to obey the orders of their superiors as long as they are not contrary to the law, the consequences of vertical mobbing applied in the public sector can be quite severe. Mobbing-like actions carried out under the name of seniority, especially in the military and surgical branches, are normalised.

Article 10 of Law No. 657 clearly prohibits superiors from abusing their authority. Paragraph 2: "Superiors must treat their subordinates fairly and equally. They must exercise their authority within the principles outlined in law and other relevant legislation." Paragraph 3: "Superiors cannot give orders to subordinates that contradict laws or Presidential decrees. Additionally, they cannot make requests for personal gain from subordinates, accept gifts from them, or borrow money from them." The administrative act of changing the place of a civil servant with a temporary assignment for the sole purpose of punishment or arbitrarily opening a disciplinary investigation and imposing a disciplinary penalty is defective in terms of the element of cause.

"It is understood from the examination of the case file that the defendant administration initiated the transfer at issue due to the plaintiff's trade union activities, claiming that the plaintiff, who is the 6th Branch President of the ... Union, was disrupting his/her duties. It is also understood that the plaintiff was subjected to disciplinary investigations and penalties for the offenses of hanging a leaflet published by the union he/she was affiliated with on the police station without permission on 8.5.1996 and participating in the civil servant actions on 18.4.1996 and 8.6.1996.

It is seen that the plaintiff, whose performance in his/her duty or any other negativity was not put forward and whose records were positive, was subjected to disciplinary penalties due to these actions. Considering that these actions were of a nature that required disciplinary action and that these penalties were imposed, the fact that these actions were also taken as a basis for transfer shows that the transfer was for the purpose of punishment. Therefore, it is not possible to accept that the said penalties are accepted as the causal element of the transaction in question. Therefore, the administrative court's decision to reject the case is not legally sound." (Supreme Administrative Court Ruling - D. 5. D., E. 1998/2342 K. 1999/853 T. 07.04.1999)

A public official who is a victim of mobbing can claim compensation for the material and moral damages arising from it. Whether this claim should be made against the administration or directly against the perpetrators in the judicial court is a controversial issue in the doctrine. The prevailing view here is that the place of jurisdiction should be determined according to whether the behavior of the mobbing perpetrators constitutes a "negligence in duty" or a "personal fault".

"...According to this, as a rule, in order to remedy the damage caused by a public official while using his/her duties and powers, a lawsuit can only be filed against the administration based on the principle of "service fault" that encompasses "negligence in duty". If the public official is found liable by the court, the administration can then recourse to its responsible personnel in accordance with the form and conditions specified by the law.

On the other hand, it is necessary to point out that the actions and transactions of the public official that are separable from his/her duties and powers, official position; in other words, actions and transactions that lose their administrative nature by turning into a crime form, are outside the above-mentioned constitutional protection and therefore, it is possible to file a compensation lawsuit directly against the public official based on his/her personal fault in the judicial court." (Court of Jurisdictional Disputes Ruling - HB., E. 2003/31 K. 2003/37 T. 16.6.2003)

It will be evaluated on a case-by-case basis which actions will be considered as negligence in duty and which will be considered as personal fault. However, even in cases where personal fault is accepted, the administration can still be held liable if it has acted in violation of its supervisory duty.

"Public administrations are not only obliged to perform the services they are required to perform properly, but also to constantly monitor the operation of this service and take the necessary precautions during the execution of the service. It is one of the established principles of administrative law that if the administration fails to fulfill this obligation and the service is performed poorly, late, or not at all, the administration will be held liable for the material or moral damages caused by the service fault." (Supreme Administrative Court Ruling - D - 2. D., E. 2007/1297 K. 2007/3247 T. 13.7.2007)

This topic will be explained in more detail with examples in our further article.

C. Mobbing in Turkish Penal Code

Although mobbing is not regulated as a separate crime in the Turkish Penal Code, some of the behaviors that constitute mobbing are in line with the crime types regulated in the Turkish Penal Code. It is undisputed that crimes such as insult, threat and sexual harassment can be committed within the scope of mobbing.

The Crime of Torture, regulated in Article 96 of the Turkish Penal Code, occurs with the systematic commission of acts of humiliation and infliction of pain that are incompatible with human dignity against the victim. The elements of the crime of torture, systematic acts of humiliation that are incompatible with human dignity, are similar to the elements of mobbing. In order for the Crime of Torture to occur, these acts must reach a certain level of severity. Not every mobbing constitutes a crime of torture. However, it has been accepted that the Crime of Torture will also occur if the treatment of the victim is humiliating in a way that is incompatible with human dignity.

"Considering that the defendant, who is the President of the Turkish Union of Chambers of Agriculture, is also the president of the board of directors responsible for making and implementing decisions to ensure the functioning of the Union and chambers in accordance with Article 29/l of the Law No. 6964 on its Establishment, and the administrative power and authority he has over the personnel due to his position; after sending the participant ... to different provinces with temporary assignments, the participant who returned to Ankara after the cancellation decisions given by the aforementioned Administrative Courts with similar reasons; it is necessary to consider that the systematic actions that have been going on for a certain period of time, aimed at devaluing, discouraging and dismissing the participant, by forcing him to work in a room where the telephone and computer tools used by the institution drivers are not available in the basement of the building, without giving him a task appropriate to his experience and position in the workplace, with the intention of causing trouble, offending and passivizing him, have reached the level of torture according to the methods and results of the psychological attacks in question. Therefore, it is seen that the judgment was made in writing without considering that the acts attributed to him constitute the crime of "torture" regulated in Article 96/1 of the Turkish Penal Code No. 5237." (Supreme Penal Court Ruling - Y - 8. CD., E. 2018/203 K. 2018/2245 T. 1.3.2018)

D. Mobbing as Tort

The acts that constitute mobbing may also cause the victim to suffer material damage due to the violation of their personal rights or health problems they experience. In this case, the person who is the victim of mobbing may be entitled to non-pecuniary damages for the violation of their personal rights and pecuniary damages for the health problems they experience.

Although it can be said that the victims of mobbing also suffer physically due to the psychological distress they experience, struggle with various health problems and receive psychological treatment, and that this causes them material damage, in practice, unless there is a physical attack and injury, material compensation is not usually awarded.

On the other hand, if the behaviors that constitute mobbing reach the level of a violation of personal rights, appropriate non-pecuniary damages should be awarded in favor of the victim. The criterion here is whether the attack made with mobbing reaches the level of violating personal rights. For example, constantly changing an employee's workplace, assigning them lower tasks, excluding them from company events, etc. are mobbing but do not violate personal rights. On the other hand, if there are behaviors such as yelling at the employee in front of others, insulting them, humiliating them, sexual harassment, etc., it will be accepted that the victim's personal rights have also been violated and appropriate non-pecuniary damages should be awarded.

"On the other hand, in order to claim non-pecuniary damages, the behaviors that constitute psychological harassment must be at the level of a violation of personal rights. The legal basis for this is Articles 24 of the Turkish Civil Code (TMK) and 58 of the Turkish Code of Obligations (TBK). According to these articles, in order to claim non-pecuniary damages, personal rights must have been violated. It does not matter whether the psychological harassment takes place in or outside the workplace.

Giving a person a workload beyond their capacity to force them to leave the job, creating all sorts of difficulties in their leave and vacation requests, not informing them about social events, making them feel like they are being talked about behind their back by changing the subject when they come, not making eye contact with them after they join the group, pretending to listen to what they say but not listening, not taking their suggestions into account and not accepting their offers, although these behaviors constitute psychological harassment, it is not possible to say that these behaviors are behaviors that violate personal rights." (Supreme Civil Court Ruling - Y. 9. HD., E. 2015/8730 K. 2017/1000 T. 31.1.2017)

BIBLIOGRAPHY

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