Mobbing

By Nedim Korhan Şengün On Apr 21, 2017

I. DEFINITION

Mobbing (psychological harassment) is a form of persistent repetition of mistreatment, threat, abuse, humiliation by peers or superiors in a workplace. With such behavior, the aim is to discourage or force the person subject to mobbing into resignation. Most of the time, such persons give up all their rights and submit their resignation as the situation and environment in which they are exposed to mobbing becomes unbearable.

It should be noted that; not all situations, where the employees have gotten angry, fought or argued is defined as mobbing. [1] If a classification is needed for such situations, for mobbing to exist it needs to be;

In the workplace,
Systematic,
Persistent,
Intentional,
With the intention to discourage, exclude, remove, humiliate,
With harm to the personality, career or health of the victim.

Mobbing can take place in form of; superior to subordinate, subordinate to superior or between equals. The adverse attitudes and behaviors that the victim will be exposed to may be explicit or implicit.

II. MOBBING IN THE TURKISH LEGAL SYSTEM

The first regulation on Mobbing in Turkish legal system was the Prime Ministry Circular No. 2011/2 on Prohibiting the Psychological Harassment (Mobbing) in the Workplaces dated 19/03/2011. The circular states that; the employer is responsible in deterring mobbing and taking all necessary measures to protect employees from harassment. Also additional regulation were implemented such as; preventive provisions on collective bargaining agreements, the “Alo 170” Call Center of the Labor and Social Security Institution to fight mobbing with help and support provided by psychologists, the establishment of the “Committee on Combating Psychological Harassment” while taking care to protect the private lives of individuals in the work and processes carried out in this regard and training and informative meetings and seminars by the Ministry of Labor and Social Security to raise awareness on mobbing.

There is no direct regulation regarding mobbing the legislation. The first article of Article 417 titled “Protection of Employee’s Personality” of the Turkish Code of Obligations numbered 6098;

“The employer is responsible for the protection of the employee’s personality and respect in business relations and maintaining an order in accordance with the principle of honesty in the workplace, protection against psychological and sexual harassment and taking the necessary precautions so that those who are harassed do not suffer any more harm. “

The employer also has the obligation to protect employees in accordance with the Turkish Code of Obligations and the Labor Law. According to the regulations in these laws, the employer shall protect and look after the health of the employee. It should be noted that; the responsibility of the employer is not only limited to physical harassment, as these responsibilities should be evaluated and interpreted in the scope of physiological harassment.

III. MOBBING IN LEGISLATIVE TERMS

Pursuant to the precedent of the Court of Appeals; as the evaluations are made in line with the classification made above, cases are classified as psychological harassment if; an employee is targeted, its spread to a given period, its systematic and there is an injustice towards personal rights. These issues must be handled separately for each concrete case in order to understand if the conditions or existence of mobbing is present. After all these conditions are met, there needs to be a further motive forcing the employee to resign as a result of mobbing.

In Court of Appeals decision numbered 2012/9-1925 E., 2013/1407 K. dated 25.09.2013 has provided a general description on mobbing, such as;

“In the Turkish Legal System, mobbing is; all types of behavior such as maltreatment, threat, abuse, humiliation, that is systematically repeated, towards employees by their peers or superiors. Examples of mobbing are, limiting the chances to express, disrupting speech, scolding, repeated criticism, social exclusion in the workplace, ignoring, discarding one’s ideas, malicious rumors, defamation, giving tasks below qualifications, giving meaningless tasks and displacement, giving a heavy workload and physical violence. (Tınaz, Pınar/Bayram, Fuat/Ergin, Hediye: Çalışma Psikolojisi ve Hukuki Boyutlarıyla İşyerinde Psikolojik Taciz (mobbing), Beta Yayınları, İstanbul 2008, s.7, s.53-58, aktaran K. Ahmet Sevimli, agm., s.116).

For an action to be considered as mobbing, an employee needs to be targeted, in a certain period of time and this situation needs to be systematic. Whether the specified conditions are met, must be evaluated separately in each concrete case. Although the causes of mobbing differ, the aim is often to ensure that the worker resigns.

Although there was no special regulation before, the mobbing of employees was evaluated within the scope of the rights and obligations assigned by the service contract to the parties. The act of mobbing constitutes a violation of the employer’s obligations to protect and act equally. Legal remedies might be necessary for mobbing since it also interferes with the personal rights of the employee.”

It should be noted that; the Court of Appeals looks for concrete evidence in determining the existence of mobbing. Proving that the event occurred consistently supported with strong evidence will be sufficient. When the reveled evidences are examined and evaluated according to the rules of practice, the claim of mobbing is considered to be proved if there is a belief that psychological harassment has occurred.

The 22nd Civil Chamber of the Court of Appeals decision numbered 2014/2157 E. and 2014/3434 K. dated 21.02.2014 has, listed the facilities provided to prove the existence of psychological harassment and has stated that in order to prove mobbing;

Conclusive evidence will not be sought,
It is sufficient for the plaintiff-employee to put forward facts that may cause suspicion that mobbing was that he/she was subject to mobbing,
The burden of proof belongs to the defendant,
Witness statement, medical report, expert opinion will be considered

In the dissenting opinion, against the same decision, it was stated that;

“It is not possible to determine the dispute, arising from the attitudes and behaviors that lead to negative conditions in terms of the conduct of the work, as mobbing. There is no evidence indicating that the defendant has targeted the individual in a systematic and intimidating behavior.”

The Court of Appeals, does not seek that the victim’s personal rights have been severely violated, as violation towards personal rights are deemed sufficient in order to indicate that mobbing has occurred. The 9th Civil Chamber of the Court of Appeals decision numbered 2010/1911 E. and 2012/11638 dated 05.04.2012 stated that; knowledge, experience and career shall be taken into consideration and work that does not comply with these qualities is considered as mobbing.

Currently mobbing has become a fact that takes place in numerous workplaces and cultures, regardless of age, race, culture, education, sex, hierarchy and so on. Almost everyone has the “risk” of being subject to mobbing. However, various measures have been developed in order to prevent such physiological harrasment as methods continue to be developed with changing business life in the global world. The legal world, should aim to keep up with this change, especially with judicial decisions in addition to current regulations. Fair solutions on a sensitive issue such as mobbing should be found.

Relevant Decisions of the Court of Appeals

Court of Appeals Assembly of Civil Chambers decision numbered 2012/9-1925 E. and 2013/1407 K. dated 25.09.2013

http://www.kazanci.com/kho2/ibb/files/hgk-2012-9-1925.htm

22nd Civil Chamber of the Court of Appeals numbered 2014/2157 E. and 2014/3434 K. dated 21.02.2014

http://www.kazanci.com/kho2/ibb/files/22hd-2014-2157.htm

22nd Civil Chamber of the Court of Appeals numbered 2013/693 E. and 2013/30811 K. dated 21.02.2014,

http://www.kazanci.com/kho2/ibb/files/22hd-2013-693.htm

9th Civil Chamber of the Court of Appeals numbered 2010/1911 E. and 2012/11638 K.

[1] Av. Gülnur Erdoğan, Mobbing (İşyerinde Psikolojik Taciz), TBB Dergisi, Sayı 83,2009, sf.318