All internet use other than the employee’s duty to work is considered private internet use. The concept of cyberloafing means the use of e-mail and internet provided by the employer by workers during work hours but for non-work related matters.[1]
With an employment contract for a definite or indefinite period, the employee assumes a duty to work dependent on the employer. In addition to the obligation of the employee to perform the work diligently while performing the duty in question, he also has the obligation to act faithfully in order to protect the legitimate interests of the employer. The employee is responsible for all damages suffered by the employer due to his/her faulty behavior contrary to his/her obligations arising from the employment contract.
If the employee’s private use of the internet negatively affects his performance during the performance of his duty and causes his productivity to decrease, then a violation of the duty of care will come to the fore. The Supreme Court of Appeals is of the opinion that if the employer cannot be expected to continue the employment relationship due to this behavior, it should be accepted that there is a valid reason for the termination of the employment contract. According to the Supreme Court, private internet use in the workplace is a valid reason for termination because it causes the performance of the job to be inadequate. It would not be a wrong interpretation to describe the statement in the decisions about not fulfilling the duty adequately as careless performance of the duty of action.[2]
On the subject, the 9th Civil Chamber of the Supreme Court of Appeals, In Its Decision Dated 05.02.2007, Merits No:2006/30107 and Decision No: 2007/2011, stated that despite the internal regulation of the workplace, the plaintiff’s use of the company computer for his personal e-mail during working hours is against the rule regulated regarding the internal functioning of the company and working hours. He concluded that he did not adequately fulfill his ability to work by using the workplace computer for his personal needs, that this behavior caused negativities in the workplace, and that the termination was based on a valid reason. The Supreme Court concluded that this behavior was not a justified reason for termination, but was a valid reason for termination arising from the employee’s behavior.[3]
Again, regarding the issue, the 9th Civil Chamber of the Supreme Court of Appeals included the following statements in its Decision Dated 04.05.2009, Merits No:2008/3630 and Decision No. 2009/12393;
‘The employee’s use of the computer for work purposes outside of its intended purpose by accessing online shopping and gaming sites more than once during working hours and not spending his time on work during this period is behavior that will lead to negativities in the workplace; In this case, the employer cannot expect the employment relationship to continue. Even if the employee completes the work undertaken or the employer does not suffer any damage, this does not eliminate his negative behavior. The worker has violated his side obligation. Therefore, the employer’s employment contract for these reasons is a valid termination resulting from the employee’s behavior.
Therefore, the Supreme Court considers the employee’s private internet use in the workplace as a valid reason for termination arising from the employee’s behavior. The Supreme Court’s basis for accepting private internet use in the workplace as a valid reason for termination is that the behavior in question does not adequately fulfill the duty to work. In other words, the reason is the fulfillment of the duty of action in violation of the duty of care.
In case of an employee who engages in cyberloafing behavior contrary to the employer’s instructions regarding private internet use, in addition to the violation of the duty of care, the violation of the obligation to comply with the employer’s instructions will also come to the fore.
Regarding the issue, the 9th Civil Chamber of the Supreme Court of Appeals Dated 17.03.2008, Merits No: 2007/27583 and Decision No. 2008/5294;
It is prohibited to use the internet for private purposes in the workplace without the express or implied permission of the employer; It stated that the employee cannot use the internet for private purposes in the workplace without explicit or implicit permission that the employee can use the internet privately. Exceptions to this ban are determined as emergencies and work-related internet use. According to the decision, even if special purpose use permission is given, the worker does not have the right to unlimited use of the internet or e-mail communication system. It is not necessary for private use to be granted only with an explicit declaration of will, but it can also be allowed implicitly in this direction. The fact that the employer does not speak out despite the private use being noticed by the employer for at least six months should be considered as implicit permission. Only in this way can the employee have justified confidence that the employer will not remain silent in the future. Likewise, the employer’s allocation of computers with internet connection to the workers in the break room should be considered as implicit permission. Again, according to the decision, the employment contract can be terminated without the need for prior warning if the employee uses the internet for private purposes despite the employer’s express prohibition; There is no need for a warning if the worker downloads and uploads pornographic pictures and videos to the data carrier of the business. Because every use of the internet leaves a trace on the computer, and expert third parties can easily detect which pages were accessed from which internet connection. In this way, the employer’s reputation in the eyes of the public may be significantly damaged.[4]
As can be understood from the decision, according to the Supreme Court, although the employer has an instruction regarding the use of the internet for private purposes in the workplace, the employee’s violation of this is a justified reason for termination.
REFERENCE
Bayram, F. (2014). İşverenin Fesih Hakkı Açısından İşçinin İşyerinde Özel Amaçlarla İnternet Kullanımı (Sanal Kaytarma-Cyberloafing). Marmara Üniversitesi Hukuk Fakültesi Hukuk Araştırmaları Dergisi, 20(1), 163-176.
Labor Law and Related Legislation
[1] Bayram, F. (2014). İşverenin Fesih Hakkı Açısından İşçinin İşyerinde Özel Amaçlarla İnternet Kullanımı (Sanal Kaytarma-Cyberloafing). Marmara Üniversitesi Hukuk Fakültesi Hukuk Araştırmaları Dergisi, 20(1), 163-176.
[2] Bayram, F. (2014). İşverenin Fesih Hakkı Açısından İşçinin İşyerinde Özel Amaçlarla İnternet Kullanımı (Sanal Kaytarma-Cyberloafing). Marmara Üniversitesi Hukuk Fakültesi Hukuk Araştırmaları Dergisi, 20(1), 163-176.
[3] Bayram, F. (2014). İşverenin Fesih Hakkı Açısından İşçinin İşyerinde Özel Amaçlarla İnternet Kullanımı (Sanal Kaytarma-Cyberloafing). Marmara Üniversitesi Hukuk Fakültesi Hukuk Araştırmaları Dergisi, 20(1), 163-176.
[4] Bayram, F. (2014). İşverenin Fesih Hakkı Açısından İşçinin İşyerinde Özel Amaçlarla İnternet Kullanımı (Sanal Kaytarma-Cyberloafing). Marmara Üniversitesi Hukuk Fakültesi Hukuk Araştırmaları Dergisi, 20(1), 163-176.