What exactly is Mobbing?
In Turkish Law ‘mobbing’is defined as systematic tyranny or oppression on a worker which aims at and undervalues their personal rights honour and respect. It is unfortunately something that many people if not subjected to have at least heard of or witnessed within the dynamics of a workplace. Many behaviours come under this mobbing bracket from humiliation, disparagement, constant critisisim, sarcasm, isolization, ignoring, insulting,constant bad treatment, to threats, physical violence and sexual harassment. We will attempt here to give a summary of what exactly mobbing is, the new laws which are aimed at preventing it and a few examples of how it works in reality.
Mobbing may not necessarily be an outright attack on a person and that is why these rules are so important in their encapsulation of what it is deemed to be. Even pressure in the workplace to create an emotional relationship, using pressure in the workplace to threaten them with firing, constant pressurization of a worker to defend themselves in writing on unfounded grounds, unrightful punishment, unrelated questionning of females workers on their family or pregnancy plans or the use of derogatory nicknames and even yelling are included. In effect any behaviours which cause a worker to become psychologically or financially harmed, often to the point of leaving their work is considered to be mobbing.
By giving importance to this issue and creating a legal framework to both address and prevent mobbing, workers and employers will be guarded against its detrimentals effects and thereby create a more successful working enviroment.
A Brief Legal History of Mobbing
Whilst there was no mobbing clause in the Defunct Obligation Laws, in 2011 it was incorporated into the new Turkish Obligation Law in the 6098 clause which states that… ‘Employers are liable to create a working enviroment based on honest principles wherein the employees personal rights are protected especially in regards topsychological and sexual abuse and where this has occurred they have the responsibilty to halt and prevent any further damage from it than incurred with the correct precautions.’
Therefore it is ‘The employer (who) is obligated to provide by all means necessary a safe and secure working enviroment for the employees. The employer is liable for any illegality or anything contrary to any contractual agreement which results in the damage to thephysical person of the employee or their legal rights and as such will be subject to compensations arising from such a breach of obligations.’
As mobbing encapsulates violations of basic human rights its legal framework is found in many branches of Turkish Law including the Constitutional Law, Civil Law, Penal Law and Debt Law and Labour Law. Mobbing is also defined in the International Labour Organization of which Turkey is a member state, as ‘ Bad intentioned, cruel, revengeful, derogatory and critical behaviour against one or a group of employees aimed at sabotaging them.’
According to the Supreme Court in order for mobbing to be ocur there must be ‘Long and sustained systematic derogatory behaviours creating psychologically painfull effects which prevent the employee from working despite their resistance against it such as threats, violence, disparaging or wrongful accusations, serious critisicims, abuse, actions such as lengthening working hours’. Mobbing is further described here as being essentially ‘an attack on a person or group of persons honour, character, talent, experience, thoughts, ethnicity, lifestyle, culture or other such elements. This is expressed in the form of derogatory gossip, unfounded claims, humiliation in a crowd, lack of respect, unrightful criticism, and ignorance and other behaviours which effect the target mentally, psychologically and physically’.(Y22HD,E:2015/2103 )
How are the Mobbing Rules applied in reality?
Example 1 What consitutes Mobbing?
Let us look at how this law is actually applied in reality. In one very clear case a 56 year old married woman had been working constantly for a bank for 14 years as a lawyer. She was then sent to 30 different locations of this bank to work within a period of 9 months. This was not the situation for any of the other employees nor was it a general policy of the bank in question. The plaintiff had in writing to the bank recently made it clear that she had no intention of retiring and the bank had then specifyed that if she were not to agree to the transfers it would in effect annul the working contract between her and the bank as in the recent transfer deemed appropriate for her to go to Bursa. The bank was clearly trying by means of constant transfers to extract a notice of her intention to retire from her position. In respect of these damages both material psychological and her legal fees she opened a case against the bank. When the first court rejected that these demands on her were surmount to pyschological abuse (mobbing) and she had to appeal. The Assembly of Civil Chambers forthwith interpreted these unfounded demands on her as ‘Mobbing’ in order to make the laywer resign and retire and overulled the decision of the first court.(YHGK E.2012/9-1925 K.2013/1407 T.25.09.2013)
In the case the court decided that the plaintiffbeen subject to unreasonable constant change of job location and as a result had become ill also that she had been subject to threats, allegations, and the object of hurtfull comments by others. The bank manager had repeatedly accused her of being a problematic, difficult, unfavouable and argumentative person and given her work to do that were the responsibilty of other employees, her work enviroment was disorganized and under such stressful circumstances she had become ill with a digestive disorder and had to go on sick leave for 20 days within 4 months. The plaintiff had despite not being seen as serious by the bank had written and complained of all these factors to the bank manager who had not found a solution for them.
In regards to this example of mobbing the plaintiff claimed that she should be awarded compensation for her financial and psychological loss. The court gave a peremtory decision to this plea.The Supreme Court Legal 22. defined that it was not necessary for the victim to have suffered a very serious violation of their human rights but it was enough that their personal rights were unrightfully breached. Moreover the court also declared thatno definate or concrete evidence of mobbing behaviour within the workplace by the victim would be sought that events which should arouse suspicion of mobbing was enough. To this end the court then decidedthat the decision of the first court was faulty and should be rectifyed. (Y22HD E.2013/693 K.2013/30811 T.27.12.2013 )
Example 2 ‘The question of Proof ….’
Although reports of mobbing are on the rise everyday relatively very few victims actually open cases to use the legal routes available to them. Usually the reasons behind this are that it may happen over time slowly so as it becomes seemingly a normalized situation. By the time the victim realises they are being mobbed they often isolated and weakened by the experience and feel under pressure to find witnesses to support them which may seem difficult to achieve. This is especially true in cases where it is the employer who is responsible for the mobbing behaviour. In research and surveys on mobbing it was found that despite the few legals cases there were actually thousands of incidents every year. However within those who were able to speak of their experiences very very few ever applied for justice because of their fears of not being able to provide proof.
Although concrete evidence may not be required there must be some mobbing behaviour incited otherwise this would leave the door open to false acusations for fiscal rewards. The case in hand highlights the fine line in this issue. In this incident the plaintiff was employed as a doorman and worked 7 days a week from 5 in the morning till midnight. The family who employed him had it was allegated deliberately extended his hours, without relevant payment in order to induce him to leave. However the first court refused the allegation of mobbing in relation to the fact that the defendant stated that the employee had not used his holidays as he could and that there was no mobbing behaviour related by the plaintiff or indeed any evidence of such to support the case. (Ankara 3. Labour Court. E.2009/472 the Supreme Court approved this decision.(Y9HD,E.2011/12129)
In conclusion the essential focus of the mobbing rules are not only on protectingthe issues of civil rights, social relations, career security, health and quality of life but on achieving a clear result where they are abused. The law has encapsulated this abuse to include psychological abusive tactics which where perhaps hereto before overlooked. It has however defined that this must be constant, systematic behaviours done with the intent of causing harm. Regarding the issue of proof it is apparent that the accusations of behaviour presented must appear much more serious and infer likely abuse than the presented defence in order for mobbing to be accepted by the court. However these laws certainly open the road for the thousands of hereto silent victims to come forward and reclaim their fundamental working and civil rights, perhaps the key factor is that they should be aware of this facility and in doing so Kaska International Law Firm are happy to contribute to this cause herein…