The contents of the e-mail and personal Whatsapp account of the employee with his colleague were examined by the employer, and the employment contract was terminated on the grounds of these correspondences. The decision of the Constitutional Court regarding the violation of freedom of communication and respect for private life was published in the Official Gazette dated 15.11.2022.
In this case, the applicant working in a private company claimed that his constitutional rights; respect for private life and freedom of communication were violated as a result of the examination of the correspondences between him and his colleague via mobile phone allocated for work by the employer and the termination of the employment contract on the grounds of these correspondences
The applicant filed a reemployment lawsuit claiming that his employment contract was terminated unjustly. The applicant stated that the correspondence between him and his colleague is personal data and should be protected. The defendant company, on the other hand, stated that the cell phone correspondence of the employee was examined in order to reach the contact information of the customers, and as a result, insulting statements about the company employees were reached in the contents of the relevant messages.
The labor court decided to reject the case on the grounds that the correspondence between the applicant and her other colleague may constitute a justifiable reason for termination and that the aforementioned correspondence was obtained in accordance with the law because the mobile phone was provided by the employer.
The applicant appealed the decision. BAM 30th Civil Chamberemphasized that the expressions in the message content could disrupt the working order between the employer and the employees and would adversely affect the business relations, and that the decision of the court of first instance was appropriate. In the document titled Communication Tools Policy issued by the employer, it is stated that “the company’s communication tools should be used only for duty reasons and for business purposes, and should not be used for private communication and works”.
Accordingly, it was stated that the examination of the contents of the mobile phone allocated by the employer did not violate the privacy of private life and the evidence was not obtained unlawfully. However, this is not a termination for a good cause; it was concluded that the termination of the employment contract with valid reason should be accepted and the reasoning of the court was erroneous.
The applicant filed an individual application to the Constitutional Court. As a result of its examination, the Constitutional Court stated that accepting that the employer has the authority to examine and inspect communication tools and equipment such as e-mail and/or mobile phone correspondence violates the fundamental rights and freedoms of the worker, and stated that it is an issue that should be respected in the workplace as well.
The Constitutional Court emphasized that in the document titled Communication Tools Policy specified in the decision of the Regional Court of Justice, the limits of use, the sanction for exceeding these limits, and the notification of the aforementioned document to the workers within the scope of the obligation to inform are not discussed.
The Constitutional Court referred to the decisions of E.Ü and Samet Ayyıldız, emphasizing that there are other violation decisions regarding the supervision of the applicants’ corporate e-mail and personal Whatsapp correspondences by the employer and the termination of the employment contract on the grounds of these correspondences. The Constitutional Court stated that the same violation took place in the this case with similar grounds. For these reasons, it was decided that the applicant’s respect for private life and freedom of communication rights were violated.