Ercüment Erdem Att. Sevgi Unsal Ozden

The Supreme Court’s Opinion on the Evidential Value of WhatsApp Employee Correspondence

February 2020

Introduction

It is indisputable that WhatsApp Messenger ("WhatsApp") has become an integral part of business life, as well as our social life, due to the convenience of instant communication. Thus, is it possible that correspondence sent through this application, which is also widely used by employees, constitutes evidence against the relevant employee, or a basis for the termination of employee contracts with their employer?

This article reviews the current decisions and the opinion of the Supreme Court concerning the evidential value of WhatsApp correspondence in sanctions against employees.

Decisions of First Instance and Supreme Courts

The 9th Civil Chamber of the Supreme Court issued a decision[1] of approval in 2015, stating that the termination of an employment contract due to WhatsApp correspondence amongst other employees, which included statements regarding his/her manager that were incompatible with rules of courtesy and discipline, is contrary to the law. Subsequently, in 2017, a decision was made showing the perspective of the Supreme Court regarding the evidential value of WhatsApp correspondence and whether these may be used against employees[2]. In the case that was subject to the decision, in a WhatsApp group created for communication amongst employees, the correspondence of the employees regarding the difficulties of working conditions and the attitudes and behaviors of the managers (behaviors may be identified as not equal, mobbing), was identified. The correspondence in the group was conveyed to the employer by another employee who was in the same group. The employer thereupon terminated the employment contracts of the other employees in the group, including the plaintiff, and gave a warning to the employee who conveyed the correspondence. The court of first instance rejected the reinstatement case by evaluating the conduct of the employees within the scope of “the breach of employer’s trust” in Article 25/2-e of Turkish Labor Law numbered 4857. However, the Court of Cassation overturned this decision by stating that the in-group conversations were confidential and that the termination due to the correspondence, which had been obtained illegally and delivered to the employer, could not be proven to be based on a valid or just cause. As well, the Court of Cassation drew attention to the fact that the correspondence between the employees were out of working hours.

In a recent dispute examined by the Supreme Court, in a WhatsApp group created amongst employees, the statements against the employer’s representative and the complaints on as to wages and bonus payments were noticed. In the conversation made by the plaintiff in this group, he/she also encouraged his/her colleagues to “not work hard, their efforts would be in vain.” The court of first instance rejected the reinstatement claim on the grounds that communication concerning wages and bonus payments within the WhatsApp group is against the contract and the principles of honesty and loyalty, since there was a commitment as to wage confidentiality. Moreover, the court stated in its reasons that there was no evidence that the employer obtained this correspondence illegally. On the other hand, the Supreme Court found that it is not forbidden to create a group and communicate with other employees unless it disrupts workflow and affects their work. Afterwards, a decision of reversal was made on the grounds that WhatsApp conversations are confidential in terms of privacy of communications, and that the termination of the employment contracts will be invalid if only based on such correspondence.[3]

In addition, there are also decisions of the Court of Cassation wherein the sanctions based on WhatsApp correspondence, and applied against the employees, are deemed as valid. For example, the employment contracts were terminated due to the profanity used in the messages of an employee in a WhatsApp group conversation, and the mentioned employee filed a lawsuit, accordingly. As a result of the trial of the court, the decision of acceptance of the case was made on the grounds that the plaintiff did not refer to a specific person, and that the WhatsApp group was a closed group. However, the Supreme Court decided that the case should be dismissed. It was pointed out in the reasons of the relevant decision[4] that the profane messages of the plaintiff were proven, the plaintiff's behavior caused negative effect for conduct of the work in the workplace, and that the termination was valid.

In a decision[5] made in 2018, the Supreme Court determined that the wording and content of the messages of the plaintiff in a WhatsApp group were incompatible with the employment relationship, and the plaintiff caused adversity in the workplace through these behaviors; thus, the court ruled that the termination made on the basis of this correspondence was valid.

Evaluation and Assessment

When the justifications of the Supreme Court's recent decisions are examined, it is clear that the court found that the WhatsApp system is protected, in itself, and is closed to third parties. Furthermore, in the decisions, it is emphasized that employees cannot be banned from creating a group and communicating, provided that these communications do not disrupt their workflow and do not affect their work. Pursuant to the Supreme Court, these communications must also be protected as personal data, and these messages may not be recognized before the court in cases where it is not proven as to how they were obtained. It can be said that this view is a reflection of the general principles of law regulated in Article 38/6 of the Constitution of Republic of Turkey, stating that “Findings obtained in violation of the law cannot be considered as evidence” and, in Article 189/2 of Code of Civil Procedure numbered 6100, stating that “Evidence obtained unlawfully cannot be taken into account by the court in the proof of a case.” It is also obvious that the principles and rules regulated under Personal Data Protection Law numbered 6698 (“KVKK”) are taken into consideration by the courts.  

Indeed, in a completely different matter, in a case related to an alimony-related dispute, the Supreme Court clearly states that WhatsApp correspondence presented as evidence should be regarded as unlawful evidence, if it has been made without the knowledge and permission of the account holder (in other words, the data owner).[6]

We may, thus, conclude that the sanctions to be applied by the employer should not breach the rights of the employee as protected by the Constitution (such as privacy of private life, freedom/privacy of communication), and that the correspondence must be legally obtained. For instance, the correspondence obtained by the employer through a WhatsApp group of which he/she is not a member, without the consent of the members of the group; in other words, without the consent of other parties to the correspondence, will be deemed as a breach of privacy of communication, and these communications will not be taken into consideration in possible conflicts.

As a result, the sanctions against the workers based on the WhatsApp correspondence may be considered valid if they were obtained within the scope of the employer’s supervisory and surveillance authority[7] that complies with the rules and principles set forth under KVKK.

However, obtaining these communications legally is insufficient to use them against employees. For the terminations to be made on the basis of WhatsApp correspondence, the statements that are incompatible with the rules of ethics, goodwill and courtesy should disrupt the workflow or cause negativity in the workplace, in order for the termination to be deemed valid. Lastly, the termination should comply with the other rules and principles of the Labor Law regarding termination by the employer, such as taking the employee’s statement, termination being last resort, etc.

Conclusion

The aforementioned decisions, with their reasoning as reviewed, show that it is not possible to make a certain determination on whether WhatsApp correspondence to be used as evidence against employees or not. While in some of its decisions, the Supreme Court regards sanctions against the employees based on WhatsApp correspondence as valid while, in other cases, it does not take WhatsApp correspondence into account, remarking on the confidentiality and personal data quality of the communication. Therefore, the following points should be examined to ascertain this subject at hand: (i) Evaluating each case on its own merits; (ii) How these communications are obtained; (iii) Context and accuracy of the correspondence; (iv) Whether the correspondence has caused problems or negativity at the workplace, or how the correspondence has affected the relationship between the employees and the employer; and (v) whether the termination of the employee contracts have duly carried out.

 

[1] 9th Chamber of the Supreme Court, E, 2015/17583, K. 2015/25132, 9.9.2015.

[2] 9th Chamber of the Supreme Court, E, 2016/14205, K. 2017/9526, 1.6.2017.

[3] 9th Chamber of the Supreme Court, E, 2018/10718, K. 2019/559, 10.1.2019.

[4] 9th Chamber of the Supreme Court, E, 2019/7066, K. 2020/357, 15.1.2020.

[5] 9th Chamber of the Supreme Court, E, 2017/14638, K. 2018/2329, 12.2.2018.

[6] 3rd Chamber of the Supreme Court, E, 2016/14742, K.2017/2577, 7.3.2017.

[7] Tokgoz, Yesim: Employer’s Right to Govern and Personal Data Management, Erdem & Erdem Newsletter, September, 2017.