Constitutional Court Decision Review: Limits of the Employers’ Management Right

May 2022 İdil Uz
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Introduction

The dominant position of the employer due to the nature of the employment relationship, the dependency of the employee, and the obligation to work constitute the basis of the employer's right to manage. The right to manage refers to the right to regulate the conduct of the work and the behavior of the employees in the workplace with the instructions given by the employer, provided that it is not contrary to the law, the employment contract and, if any, the collective bargaining agreement.[1] This right is basically regulated under Article 399 of the Turkish Code of Obligations No. 6098 (“TCO”). Accordingly, the employer may make general regulations regarding the conduct of the work and the behavior of the employees at the workplace and give them special instructions; employees, on the other hand, are obliged to comply with these instructions to the extent required by good faith. As can be understood from the wording of the article, the employer's right to manage may be in the form of regulating the execution of the work, for example, where, when, how and in what order the work is to be done. This is also often accomplished by setting out rules for the behavior of the employees in the workplace; for example, the procedures to be followed at the workplace, policies for the supervision of the employees or disciplinary rules.

Although this right of management is based on legal regulations, the boundaries of this right are drawn by the employer's responsibilities towards the employee and the employee's fundamental rights and freedoms. With its two decisions published in 2022, the Constitutional Court decided that certain activities carried out by the employer within the scope of the right to manage violated the rights of the employees to protect personal data, privacy and freedom of communication, and drew the limits of this management right.

Monitoring of Communication

With its decision numbered 2018/34548 and dated 28.12.2021 that was published in the Official Gazette dated 11.02.2022 and numbered 31747, the Constitutional Court has imposed important restrictions on the employer's monitoring of the employee’s communication.[2]

Summary of the Decision

The decision concerned the termination of the employment contract of the applicant without notice. The applicant was a private company employee who worked as an IT officer in a state hospital affiliated with the Ministry of Health, where the employer provides services. The applicant was terminated after he was asked to defend himself on the grounds that he tried to get leave using an untrue statement, slandered and insulted company and institution managers through the messaging program, and disrupted the information system in an organized manner with his colleagues.

Before the court of the first instance and the regional court of appeal, the applicant made a variety of claims. Firstly, he claimed that his employment contract was terminated unjustly, without even waiting for his defense and without notice. Secondly, he contended that the correspondence underlying the termination should be protected as personal data as these correspondences were not accessible to third parties, and thirdly, he asserted that the way the contents of these messages were obtained constituted unlawful evidence due to uncertainty of its acquirement and that his rights to the protection of personal data, the privacy of private life and freedom of communication were violated. In response, the employer argued that the employment contract was terminated without notice and without compensation pursuant to Article 25 of the Labor Law No. 4857, that the WhatsApp correspondence, which was the reason for termination, was carried out on the computer allocated to the applicant for work purposes, and that these correspondences were obtained by the responsible supervisor as a result of the applicant leaving the computer turned on. Furthermore, the employer contended that the termination was justified because the correspondence contained heavy swearing, slander and threats, and that the employer’s workflow was disrupted since the applicant was constantly receiving medical reports in order to prevent the termination notice. The court of the first instance decided that the termination was invalid on the grounds that it was not made in writing. However, in the proceeding held upon the objection of the employer, the regional court of appeal decided that the termination was justified due to the actions of the applicant; therefore, the decision of the first instance court was reversed and the case was definitively dismissed.

Evaluation of the Constitutional Court

The evaluation of the Constitutional Court was basically shaped within the framework of Article 20 of the Constitution, entitled Right to Privacy, Article 22, entitled Freedom of Communication, and the positive obligation of the state to ensure the fundamental rights and freedoms of individuals. In addition, the Constitutional Court examined its own previous decisions regarding the management authority of the employer and its limits. In previous cases, the Constitutional Court has ruled that the employer can control the communication tools made available to the employee within the scope of its management authority, and may impose restrictions concerning the use of those communication tools for justified and legitimate reasons, such as ensuring the effective execution of work and controlling the flow of information, protecting against criminal and legal liability related to the actions of the employee, and measuring productivity or security concerns. However, the Court has emphasized that this management and supervision authority is limited to the conduct of the business, and ensuring of the order and security of the workplace. It has also underlined that restrictive and obligatory workplace rules should not harm the essence of the fundamental rights and freedoms of employees.

Accordingly, the employer can control the means and content of communication in cases where i) there are legitimate grounds showing that this intervention is justified, ii) the employees have been notified in advance of the possibility of this intervention, along with the legal basis, purpose, scope, possible results of the intervention, the processing time of the data concerned, and the rights of the data owner, iii) the intervention is related to the aim to be achieved and suitable for realizing this aim, iv) the intervention is necessary because it is not possible to achieve the same aim with a milder measure, v) the intervention is limited and proportional to the purpose, and vi) the conflicting rights and interests of the parties are balanced in a fair manner. The Court has emphasized that there is a justified expectation that the fundamental rights and freedoms of the employees will also be protected in the workplace unless full and clear information is given in advance regarding the monitoring of the communications on the computer allocated for use in the workplace and regarding the conditions for the use of those communication tools.

In this case, the Court determined that a notification showing the employer's authority to examine the workplace computer and its scope was not made to the applicant, and the legitimate reasons and grounds for the intervention were not specified. In addition, the employer failed to give a sound explanation that the relevant WhatsApp correspondences were obtained through a lawful method. Finally, the Court noted that the messaging program was known by everyone to be a messaging program for personal use and has nothing to do with the functioning of the workplace; on the contrary, it was created for private messaging by the applicant and his friends. The Court faulted the first instance courts for failing to examine these aspects of the case and found that the trial did not fulfill those courts’ obligations to carefully take into account the relevant constitutional guarantees. Thus, the Court decided that the applicant's right to respect for private life guaranteed in Article 20 of the Constitution and freedom of communication guaranteed in Article 22 of the Constitution were violated.

Processing of Personal Data

With its decision numbered 2018/11988 and dated 10.03.2022 that was published in the Official Gazette dated 19.04.2022 and numbered 31814, the Constitutional Court decided that the right to demand the protection of personal data within the scope of the right of respect for private life was violated due to the fingerprint recording system.[3]

Summary of the Decision

This case is related to the rejection of the request of the applicant, who is a civil servant working for Söke Municipality, for the abolition of the implementation of the fingerprint system for tracking working hours.

The applicant argued that since the fingerprint is personal information that enables the individual to be identified physically, it remains within the scope of privacy. The applicant also argued that the legislation includes regulations only for the determination of the working hours of the civil servants and the starting and ending periods of daily work, but there is no regulation on the control of the working hours, and that the consent of the applicant and the personnel was not obtained for this practice. The municipality, on the other hand, contended that the employees have obligations to continue attending work, and that this justified the use of cameras and fingerprint recorders and other various devices. Furthermore, since the point of monitoring working hours was in order to ensure the continuity of public service and to monitor the efficiency of the personnel, it did not violate the right to respect for private life.

The court of first instance decided to accept the case and to annul the administrative act on the grounds that it is a constitutional requirement to have a legal basis for the restriction of fundamental rights, but that there was no such legal basis showing the limits, procedures and principles of the application. The municipality appealed the decision of the court of first instance and the regional administrative court decided to reject the case definitively on the grounds that this practice could not be considered a violation of the right to privacy since the applicant was obliged to comply with the rules set by the administration.

Evaluation of the Constitutional Court

The evaluation of the Constitutional Court was basically shaped within the framework of Article 20 of the Constitution entitled Right to Privacy and the Law on Protection of Personal Data No. 6698. Accordingly, the decision emphasized that the limits on fundamental rights and freedoms should primarily be stipulated by law, the scope of the discretionary power left to the competent authorities for the protection of the individual against arbitrary interventions should be clearly stated, and it should be sufficiently clear under which conditions and within what limits the public authorities are authorized to intervene, and in this context, the grounds for the relevant intervention and the results of the intervention must be predictable. It underlined that the grounds for the processing of special categories of personal data other than those related to health and sexual life must either be clearly stipulated in the law or accompanied by the existence of explicit consent, and that in order for explicit consent to be valid, an individual must be notified of at least the scope, purpose, limits and consequences of the personal data to be processed beforehand. The Court also stated that an intervention can be carried out if there is a legitimate aim within the scope of the administration's supervision and management authority, and if there is no other suitable way to achieve this purpose with less interference with rights and freedoms, and if the conditions of being limited to the purpose are met.

In this case, taking into account that there is no clear regulation authorizing the municipality to record its employees’ fingerprints and track their working hours, and that the applicant also did not give consent for the processing of his personal data, the intervention did not meet the legality requirement. Consequently, the Constitutional Court decided that the right to demand the protection of personal data within the scope of the right to respect for private life, which is guaranteed in Article 20 of the Constitution, had been violated.

Conclusion

The employer's management and control authority over the employees and business processes has been shaped within the framework of judicial decisions and its limits have been determined. Accordingly, the limit of employers' right to manage and control is where the fundamental rights and freedoms of employees begin. The practices to be carried out within the scope of the right to management must be clear, specific, limited to achieving a specific goal, proportional and legal. In addition, employees must be informed about the interventions to be applied in advance, and the obligations in the legislation regarding the processing of personal data must be fulfilled.

Source

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