With the widespread use of the internet, termination of employment contracts by the employer due to the employee’s use of social media has become a frequent topic. In practice, it is seen that surfing social media or sharing, liking or commenting on social media platforms are shown as grounds for termination. This termination can be made based on just causes regulated in Article 25 of the Labor Law, as well as for workers with job security, based on valid cause in accordance with Article 18 of the Labor Law. For workers who are not covered by job security, the issue of whether the termination is in bad faith will come to the fore in accordance with Article 17 of the Labor Law. It should be noted that the employer’s access to the social media uses claimed as grounds for termination must be lawful. In addition, in the evaluation regarding the severity of the violation committed by the employee and its negative effects on the employment relationship, the social network used and the degree of confidentiality of the sharing (whether it is accessible by whom) should be taken into consideration.[1]
Court of Cassation 9th Civil Chamber Merits No. 2015/2635 and Decision No. 2016/12272;
‘‘The plaintiff criticized the employer’s practices outside the workplace on his social media site, which was seen only by his friends who identified with him, and when he was warned about this, he stood by his words and made statements such as “there is no real man, everyone in the workplace, including himself, has become a slippery, a sycophant, a swindler”. It is understood that his friends shared his social media site at the workplace. It has been determined that some of these friends agreed with him, some criticized him, and the plaintiff stated that he was not understood by the critic. The employer is not a direct party to the sharing. Although the employer stated that the employees complained, he did not present any evidence in this regard. The plaintiff’s own social media site is limited to his friends. In this way, making general statements about everyone, including himself, does not constitute an insult. It is appropriate for the court to evaluate these statements within the scope of freedom of thought. It is appropriate for the court to accept that the termination was not based on a justified reason. Therefore, the defendant’s appeal objections in this regard are not appropriate.”[2]
Court of Cassation 22nd Civil Chamber Merits No. 2015/8023 and Decision No. 2016/13598;
‘‘Criticism may be related to organizational, business, scientific, political, social, cultural, economic, artistic or literary fields. The limits of criticism also vary according to these fields, the person criticized, the place, time, subject, reason and situation of the criticism and the purpose of the person criticizing. Undoubtedly, the right and freedom of criticism, which is a manifestation of freedom of thought and expression, is not unlimited. The limits in question are flexible and variable due to the reasons mentioned. The limits of criticism should be interpreted narrowly in the presence of a contractual, contractual, legal, organizational, institutional or hierarchical relationship between the critic and the criticized, and broadly in the absence of such a relationship. In this context, the criticism of a worker against his employer, a civil servant against his superior, a subordinate against his superior, a student against his teacher cannot be harsh, offensive, hurtful or insulting. However, it is not fair to attribute equal or similar sanctions to criticism at every level. Just as there must be objective truth and accuracy in criticism, the words and style used must also be moderate. Complete truth or reality is not required here. Words and behaviors that do not contain truth and reality can be accusations or accusations, and slander, denigration, humiliation or insults, depending on the situation. In criticism, there must be a suitable causal relationship between the words uttered and the events and facts criticized. Irrelevant statements that are completely disconnected from their context may not be considered within the scope of criticism. In the specific case, the words uttered by the plaintiff are related to the events and facts criticized, and the limits of this have not been exceeded. The purpose of criticism is to eliminate incorrect, unwanted, disturbing or unpleasant words, attitudes, behaviors, practices or results. Therefore, they are disturbing or hurtful or thought-provoking to a certain extent. Criticism is a situation beyond expressing disapproval, disapproval or dislike, and it must be so. (…)
In the specific case, although the court ruled to reject the severance and notice payments on the grounds that the employment contract was terminated for a just cause, the decision does not comply with the content of the file. In the e-mail sent to the defendant employer and which is the subject of the termination, the plaintiff worker included the following statements: “What are you doing when workers in the factory are sick, you send inspectors, you send them as a notification to the factory, they dress up before you come and why do the inspectors who come do not meet with the workers but only meet with the management and leave, or do you only inspect to show off, the workers would hurt each other if they could, are you sleeping there, next time I will write to the Ministry of….” Although the worker accuses his employer of showing off and not seeing what is happening (sleeping) with these statements, he aims to dramatize a material fact that should not exist, express his discomfort and have the employer put an end to the current negative situation. The plaintiff has not targeted the personality, honor, dignity and dignity of the employer with these statements. It is possible to express discomfort, dissatisfaction and injustice within the limits of tolerance, in a manner that will attract the attention of the addressee, even if it is in a disturbing tone. In light of the information explained above, it is understood that the statements of the plaintiff, which are the subject of termination, remain within the limits of criticism, and that the plaintiff made statements aimed at drawing attention to the negativities experienced by the workers and eliminating them. It is clear that statements evaluated within the framework of freedom of expression will not constitute a justified reason for termination.’’[3]
Court of Cassation 9th Civil Chamber Merits No. 2019/1405 and Decision No. 2019/14318;
‘‘The plaintiff’s employment contract was published on his social media account on 30/06/2016, “We have been serving with respect and love day and night for many years. Our respect was really great, we were comfortable when we went to bed, our respect was so great that the place we were serving at the time could not provide 4 hours of service due to a problem. We sacrificed our private time under the name of gratitude and respect and made up for this 4-hour loss together. This was our family. We have not been celebrating the holiday for many years, we have all become a family or we thought we were. I realized that you have killed our respect with what you have made us go through. It hasn’t even been 2 days, some of us have come face to face with death, but no one has lost their respect and taken their place. It was explained to us in detail and it was said that no one will get 0, but unfortunately you have made these 0s suitable for us despite everything. I looked at my account today and saw what It’s a shame. Is this right for us, right now, at this blessed time, right after the holiday? Whoever made us experience these, supported us, and gave us the opportunity, you played with our sustenance and that of our children. I pray to God that you too will not die without experiencing these things. On this blessed day, even if I lost my rights as much as the tip of a pin, I will never ever forgive you.” It is understood that the termination was made due to the post.
(…)
When the content of the plaintiff’s defense in the incident in question is taken into consideration, it is understood that the comment made and shared by the plaintiff is not in the nature of insult and harassment, the plaintiff explained his feelings, thoughts and criticisms regarding the non-payment of premiums in his comment, the plaintiff’s behavior alone does not have the weight of a just cause within the scope of Article 25 of Law No. 4857, and in the evaluation made within the scope of Article 18 of Law No. 4857, the posts in question are not of a nature that would make the continuation of the employment relationship unbearable, there is no evidence that the employer’s business interests were harmed or the working order was disrupted due to this post made by the plaintiff, and accordingly, it is understood that the post made by the plaintiff will not give the employer the opportunity to terminate for a just cause or a valid cause.[4]
Court of Cassation 9th Civil Chamber Merits No. 2015/20326 and Decision No. 2015/28093;
‘‘It is regulated in Article 25/II-C of Law No. 4857 that the sexual harassment of another employee of the employer by the employee or the situations that do not comply with the rules of morality and good faith in Article 25/II of the same law and similar situations constitute the employer’s right to immediate termination for just cause.
From the information and documents in the file, it has been understood that the plaintiff, who was determined to be married, knew the female employee named … because she worked at the same workplace and had no other social relations with her, sent a message on the social networking site named … saying “…you are a very nice and sweet person and warm-hearted, I see you as a sister and I would like to be friends with you, don’t get me wrong, I have a daughter your age” and that .. … was disturbed and reported the situation to the workplace authorities.
It cannot be understood that an employee at the workplace can disturb another employee who works at the same place but does not know, and say things that will amount to harassment.
When the words sent by the plaintiff to the female worker, who was determined to have no social relations other than working at the same workplace, “…you are a very sweet and sweet person and warm-blooded, I see you as a sister and I would like to be friends with you, don’t get me wrong, I have a daughter your age” are evaluated as a whole, they are of a harassing nature to the addressee, and since it is understood that the worker is harassing another worker of the employer and the termination of the plaintiff due to this action is justified, the Court’s acceptance of the case with the written justification is erroneous, the defendant’s attorney’s appeals are found to be appropriate, and our Department has to decide to overturn and eliminate the verdict in accordance with Article 20/e of Law No. 4857.’’[5]
[1] Çalışkan Yıldırım, A., & Uğur, Ö. (2022). İşveren Bakımından Fesih Sebebi Olarak İşçinin Sosyal Medya Kullanımları. İstanbul Hukuk Mecmuası, 80(4), p. 1183.
[2] Court of Cassation 9th Civil Chamber Merits No. 2015/2635 and Decision No. 2016/12272.
[3] Court of Cassation 22nd Civil Chamber Merits No. 2015/8023 and Decision No. 2016/13598.
[4] Court of Cassation 9th Civil Chamber Merits No. 2019/1405 and Decision No. 2019/14318.
[5] Court of Cassation 9th Civil Chamber Merits No. 2015/20326 and Decision No. 2015/28093.