In the legal world, mobbing is a concept that we encounter in the field of Labor Law and Criminal Law. In this article, the concept of mobbing will be evaluated in detail in the context of Labor Law. First of all, mobbing is a concept that we have taken from English to Turkish and has recently been frequently used among the public, and mobbing as a word means; disturbing, harassing, humiliating and systematic repetition of such actions.
Mobbing, which we have heard frequently in the context of Labor Law, is the name given to the acts that lead to psychological harassment such as intimidation, exclusion and humiliation that cause systematic disturbance of the employees by the employer. Mobbing is not only limited to what is written here, but also; behaviors that cause the employee to be negatively affected both psychologically and physically, such as exhibiting hostile attitudes, exhibiting behaviors that reduce self-confidence, discriminating, criticizing unfairly, mocking, ridiculing, ridiculing, interrupting, interrupting communication, disregarding ideas, not giving qualified work, are called mobbing.
- Types of Mobbing
Mobbing is divided into three types according to the parties to the claim:1
- Horizontal mobbing is the name given to mobbing between people with equal conditions and equal seniority.
- Up Vertical mobbing; although it is an uncommon type of mobbing, it is called mobbing applied by subordinates against superiors.
- Down Vertical mobbing is the most common type of mobbing today and is applied by superiors to subordinates.
- Elements of Mobbing
It is not possible to define all kinds of behaviors, fights and arguments in the workplace as mobbing. If we list the elements of mobbing based on the actions mentioned above; it must take place at the workplace, be continuous, systematic, done intentionally, with the aim of intimidating and removing the employee from work, and the personality or professional life of the employee must be harmed. It is clearly stated in the decisions of the High Court of Appeals that the actions and situations that include the elements we have listed should be considered within the scope of mobbing;
“It is understood that both the behaviors described as Mobbing in the lawsuit petition and the issues stated in the statements of the plaintiff’s witnesses arise from the general management approach of the employer, that it is not a practice directed solely against the plaintiff, that there is no systematic, continuous, intimidation, exclusion, intimidation Mobbing against the plaintiff in the workplace, and that there are no elements of Mobbing.”2
“Since it is understood that the plaintiff was subjected to the employer’s representative behaviors aimed at intimidating, passivizing and leaving the job voluntarily, that damage to his health also occurred due to these behaviors, and that the alleged and specified actions overlap, it is concluded that the plaintiff has been subjected to mobbing.”3
Therefore, it is clearly stated in the current High Court of Appeals jurisprudence that the acts considered to be mobbing must include the elements mentioned above.
- Burden of proof in a mobbing claim
An employee who believes that he/she has been subjected to mobbing by the employer may prove this claim by using any legal means. Pursuant to the Labor Law, it is sufficient for the employee to prove the mobbing allegation approximately, in a way to raise suspicion that mobbing has been applied. In this direction, definitive evidence is not sought in the proof of mobbing, and evidence such as witness statements, medical reports, camera records, messages are sufficient evidence to raise suspicion. The employer has the burden of proving that he did not commit mobbing against the employee who has approximately proved the mobbing claim. Below are the decisions of the High Court of Appeals which show that approximate proof is sufficient in proving mobbing and that the existence of conclusive evidence is not required;
“For the existence of mobbing, there is no need for a severe violation of personal rights, injustice against personal rights is sufficient, in addition, in mobbing allegations, conclusive evidence free from doubt will not be sought; it is sufficient for the plaintiff employee to assert facts that may arouse suspicion that he was subjected to mobbing at the workplace, the burden of proof that mobbing did not occur at the workplace falls on the defendant; when the witness statements, medical reports, expert reports, camera recordings and all other evidence are evaluated, it is unlawful to dismiss the lawsuit without considering that the mobbing claim has been proven with sufficient evidence.”4
“In civil proceedings and especially in allegations based on mobbing, one hundred percent proof is not required, the search for evidence beyond doubt belongs to criminal proceedings, while in private law and labor law proceedings, proof sufficient to form a conscientious opinion is sufficient, It has been concluded and concluded that the principle of interpretation in favor of the employee should be applied in case of doubt in the authenticity and strength of the evidence put forward by the parties, that a definite and absolute proof will not be sought in a matter such as mobbing, which is relatively more difficult to prove compared to other types of lawsuits, and that it would be more in accordance with equity and justice to show ease of proof in favor of the employee in this matter. ”5
In addition, the recent decisions of the High Court of Appeals regarding the employer’s burden of proof that mobbing has not been applied in response to the employee’s mobbing allegation, which we have discussed above, are also discussed below;
“In the face of strong facts regarding the existence of these pressures against the plaintiff employee, the defendant employer has failed to prove that the plaintiff (employee) was not subjected to psychological pressure.”6
“When there are strong facts regarding the existence of these pressures against the plaintiff employee, the employer must prove that the employee was not subjected to psychological pressure.”7
In the recent High Court of Appeals decisions, it is clearly stated that the approximate proof is sufficient in the mobbing claim and that the employer will be under the burden of proof that mobbing did not occur after the employee proves his claim in a way sufficient to create doubt.
- Rights of a Worker Claiming to be Subjected to Mobbing
The employee who claims that he/she has been subjected to mobbing may terminate his/her employment contract for just cause in accordance with Article 24 of the Labor Law Code. If the reason for termination with just cause is deemed to be valid, the employee will be entitled to severance pay and notice pay. The employee may also claim discrimination compensation on the grounds that the employer has acted contrary to the equal treatment obligation. The employee who has been subjected to mobbing may also claim non-pecuniary damages on the grounds that he/she has suffered psychological damage due to the damage to his/her personal rights, provided that all conditions are met. If the employee claims that he/she has suffered material damages due to mobbing, he/she may also claim such damages from the employer under the name of material compensation claim.
Mobbing has become a frequently heard concept in our country and is one of the most important concepts of business life. The existence of mobbing in the workplace results in the violation of human rights, and it is also seen that unemployment has become widespread due to the recent increase in mobbing. In this context, it is necessary to support the victim who has been subjected to mobbing in business life.
As ECY Law team, in this article, we have discussed the concept of mobbing, which is one of the current problems of business life, in detail by evaluating it in legal terms. It is important for mobbing victims to receive consultancy and legal protection services from expert lawyers in order to compensate their damages in the legal sense and to provide legal support. At this point, as ECY Law, we will be pleased to answer your questions with our expert staff and provide you with legal counseling and advocacy services.
- https://mobbing.org.tr ↩︎
- Yargıtay 9. Hukuk Dairesi 2017/16925 E, 2020/10963 K. ↩︎
- Yargıtay 22. Hukuk Dairesi 2017/42766 E, 2020/5460 K. ↩︎
- Yargıtay 22. Hukuk Dairesi 2013/693 E. 2013/30811 K. ↩︎
- Yargıtay 22. Hukuk Dairesi 2014/2157 E. 2014/3434 K. ↩︎
- Yargıtay 9. Hukuk Dairesi 2021/12218 E, 2021/16601 K. ↩︎
- Yargıtay Hukuk Genel Kurulu, 2015/2274 E, 2018/1428 K. ↩︎
