Employee's Social Media Use and Posts as Grounds for Termination of Employment Agreement

1.     Introduction

As it is commonly known, the technology, which at first only enabled people to communicate with each other, has evolved considerably today and has become very popular with social media which providing many opportunities such as correspondence and content sharing. In this article, the impact of the employee's social media use and posts on the termination of the employment agreement has been evaluated primarily in light of the decisions of the Court of Cassation, the Labor Code No. 4857 ("Labor Code"), the decisions of the European Court of Human Rights ("ECtHR"), the European Convention on Human Rights ("ECHR") and the relevant regulations.

2.     The Requirement of Exceeding the Limits of Freedom of Expression and the Right to Criticism for Social Media Posts to Be Grounds for Termination

Before addressing the situations where the employee's social media posts and their use entitle the employer to terminate the employment agreement, we believe that it would be beneficial to briefly mention the right to freedom of expression and criticism. The most important issue to be considered in the event of termination of the employment agreement due to the social media posts of the employee is whether the mentioned posts could be considered as criticism within the scope of freedom of expression. According to the established jurisprudence of the Court of Cassation and the prevailing opinion in the doctrine; if the right of termination is to be exercised on the grounds of the posts made by the employee on social media, it is checked whether the posts in question fall within the limits of the right to criticize. In the recent decision of the 9th Civil Chamber of the Court of Cassation numbered 2016/34334 E. and 2018/752 K:

“The plaintiff worker's own ...... account of which the plaintiff worker commented under the post of one of the former employees of the defendant workplace as follows, “Brother İsmail, the capitalist system is like this, no matter how much you work when it doesn't work for you, it easily wastes you, the pressure that 2M cable puts on people is absolutely criminal in law and humanitarian terms”. Although the court accepted that these statements were of a nature to disrupt the working order and that the termination was based on a valid reason, it was erroneous to decide to dismiss the lawsuit as written instead of accepting it, without considering that the plaintiff's words should be evaluated within the scope of general criticism and freedom of expression in the workplace, that the plaintiff did not concretely target the employer or its representative, and that the employer could not prove that this behavior of the employee caused negativity in the workplace and that the employment agreement was terminated for just cause.”

the Court of Cassation stated that if the social media post is grounds for termination, it should be evaluated whether it is at the level of criticism and if it is concluded that the post is at this level, it cannot be a justified ground for termination. Similarly, the ECtHR has stated in its judgments that the regulation on freedom of expression under Article 10 of the ECHR should also be applied to the employee-employer relationship and that states have a positive obligation to protect freedom of expression.[1]

In consequence, it would be appropriate to claim that in terminations based on social media posts made by the employee, it should be evaluated whether the relevant post falls within the scope of the right to criticize and freedom of expression. Otherwise, the employee's constitutional right to freedom of expression will be restricted by the employer and the termination will be considered unfair. Therefore, in any cases we have listed below, firstly it should be evaluated in each case whether the relevant post falls within the scope of freedom of expression and the right to criticize, for terminating employment agreement fairly.

3.     Termination of Employment Agreement for Just Cause Due to Social Media Posts

Article 25 of the Labor Code stipulates the grounds for termination for just cause, whereby the employer may terminate the employment agreement immediately without complying with the notice periods. Paragraph I of Article 25 regulates the termination of the employment agreement based on "health reasons", Paragraph II regulates the termination of the employment agreement based on "situations that do not comply with the rules of morality and goodwill and similar reasons", Paragraph III regulates the termination of the employment agreement based on "force majeure" and Paragraph IV regulates the termination of the employment agreement based on "detention or arrest".

Terminations for just cause based on the use or sharing of social media are mostly due to the violation of Article 25/II of the Labor Code. Therefore, in this part of our article, the cases where the employee's social media use and posts may occur as a ground for just cause termination will be examined in the light of Article 25/II of the Labor Code and case law.

3.1 Employee’s Social Media Posts Against the Employer or Colleagues

According to,

• Article 25/II-b of the Labor Code stipulates that if the employee speaks, acts, or makes unfounded reports and allegations of this nature that may damage the honor and reputation of the employer or family members,
• Article 25/II-c of the Labor Code, which regulates that the sexual harassment of another employee of the employer by the employee,
• Article 25/II-d of the Labor Code, which regulates that the acts of the employee that are in the nature of teasing the employer, the employer's family members, or another employee,

provides the just cause for termination of employment. There is no statement in the article of the law that the actions in question must be directed to the face-to-face interlocutor. In the decision of the 9th Civil Chamber of the Court of Cassation numbered 2016/22368 E. and 2017/14208 K:

"Although it is clearly understood that the plaintiff employee is an employee of the defendant workplace from his Twitter account, he made more than one post in the nature of insulting and taunting other employees who cannot be identified because he did not name them, for example "... friends, if you are going to be a bossy HR personnel, don't do that profession, don't drive people crazy, are you really that curious to lick the boss’s ... ", and even if he did not mention any names, it was seen that upon the defendant employer's learning of the Twitter posts, which clearly insulted and taunted another employee at the workplace, the plaintiff stated in his defense that although he accepted the Twitter posts, there were no colleagues among those who followed his Twitter account, and therefore the person or persons he meant were not his colleagues. However, it is seen from the content of the message that the person(s) subject to the message is the plaintiff's coworker, and what is missing is only concrete identity information. Considering that the termination made by the employer is justified due to the messages in the nature of insulting and taunting another employee at the workplace without giving a name due to work, even in absentia, it is erroneous to accept the lawsuit while it should be rejected."

the Court of Cassation stated that the employment agreement can be terminated for just cause even if the action that will constitute a just cause of termination is not necessarily made to the face of the interlocutor, but even if it is made in absentia through social media. Therefore, it would be appropriate to say that the posts made by the employee from his/her social media account, which fall within the definitions in subparagraphs b, c, and d of Article 25/II of the Labor Code, will constitute a just cause for termination of the employment agreement if the posts carry the severity for just cause. As a matter of fact, in the decisions of the Court of Cassation, it is stated that if the social media post constitutes one of these violations, the employment agreement may be terminated for just cause:

"As a result of the trial, it was stated that the plaintiff damaged the reputation of the defendant workplace in the eyes of the public, made insulting allegations about the employer, the plaintiff's actions exceeded the limits of criticism and tolerance, were of a nature to disrupt the working-discipline order in the workplace, and it was understood that the employment agreement was terminated in accordance with the procedure for justified reasons within the framework of the legal legislation and it was decided to dismiss the lawsuit" (Decision of the 9th Civil Chamber of the Court of Cassation numbered 2014/36660 E. and 2015/3283 K.)

“In the substantial case, it is indisputable that the termination made by the employer is justified when it is evaluated together that the plaintiff made offensive correspondence about the employees of the workplace on the social networking site, and the records of this correspondence were seen on the computer allocated for use at the workplace, and it is erroneous to accept the case with an erroneous evaluation while the court should reject the lawsuit." (Decision of the 9th Civil Chamber of the Court of Cassation numbered 2014/1150 E. and 2014/28132 K.)

As it could clearly be observed in the above-mentioned Court of Cassation decisions, the employment agreement may be terminated immediately for just cause in the event that the employee's posts on social media, do not fall within the scope of the right to criticism and freedom of expression, and which fall within the b, c and d subparagraphs of Article 25/II of the Labor Code against the employer or colleagues, and which have the weight of just cause termination.

3.2 Employee’s Social Media Posts Incompatible with Integrity and Loyalty

If the employee’s social media posts are contrary to integrity and loyalty, such as abusing the employer's trust or revealing professional secrets, the termination of the employment agreement within the scope of Labor Law 25/II-e shall become the agenda. Some of the situations that do not comply with the integrity and loyalty specified in the mentioned provision are listed as examples and it is accepted that similar acts will also constitute a violation of the obligation. In this case, it is necessary to reach a conclusion on which act of the employee should be considered as behavior that does not comply with integrity and loyalty according to the characteristics of each particular case, taking into account the requirements of business and working life, social relations and traditions, and it is necessary to make sure that the act is severe enough to cause justified termination. In other words, in light of these criteria, it is necessary to re-evaluate whether the action in question is contrary to integrity and loyalty in each case.

If we list the examples that we frequently encounter in practice and therefore the Court of Cassation has also included in its decisions;

• Accessing obscene websites during working hours[2],
• Going on vacation and sharing social media posts from the vacation during the period of a medical report, provided that it is clearly and precisely demonstrated that it is incompatible with the medical report[3],
• Posting on social media intensively during working hours, if it leads to disruption of work and disruption of workplace order,
• Making derogatory posts on social media accounts in a way that damages the relationship of trust between the parties, [4]

as grounds for just cause termination. However, as stated above, since the circumstances listed in the mentioned article are not limited in number, the employee's use of social media and posts should be evaluated in each case and it should be determined precisely whether it is contrary to integrity and loyalty and if so, whether it is severe enough to just cause termination.

4.     Evaluation of Employee’s Political Posts as Grounds for Termination

As is known, everyone is free to share their political opinions within the framework of their constitutional rights to freedom of expression and political participation. Therefore, employers cannot completely prevent their employees from sharing political posts and cannot unilaterally terminate their employment agreements based solely on this reason. As a matter of fact, the ECtHR has stated in its decision that the employee's membership of a political party cannot be a reason for termination in itself and that the termination of the agreement based on this reason constitutes a violation of Article 10 of the ECHR. Therefore, before taking action based on the employee's social media posts which include political content, fundamental freedoms such as freedom of expression and freedom of political debate should be sensitively considered and it should be meticulously evaluated whether the post falls within this scope. Otherwise, the termination of an employee's employment agreement based solely on his/her political opinion will not only constitute an unfair termination, but also a violation of Article 10 of the Constitution and ECHR. Hence, the 9th Civil Chamber of the Court of Cassation in its decision numbered 2018/4077 E., 2018/19515 K:

"In the plaintiff's social media post dated 01.06.2013; "When I came to work in the morning, I saw that I was an impractical me, very sad, cowardly media, you put everyone to sleep with the ridiculous programs you broadcast. Gezi Park", no criminal element was detected in this post, as well as the fact that the date of the post was 01.06.2013 and the issues that reveal the suspicion that the plaintiff was in contact and association with illegal structures in the period from this date to the date of termination could not be proved by the defendant employer, since it is understood that the termination does not meet the validity conditions for this reason, the termination is invalid and the plaintiff is reinstated..."

It was stated that the termination was unjustified since there was no criminal element in the post of the plaintiff who declared his political opinion on his social media account. In these and similar decisions, the Court of Cassation, in the event of termination of the employment agreement due to political posts, determines whether the post in question is within the scope of freedom of expression and criticism by examining issues such as whether the post in question constitutes a crime, whether there are statements against the integrity of the country or state leaders, whether the posts will lead to criminal liability. Therefore, before taking action regarding the political posts of the employee, it is necessary to determine whether the post in question;

• Whether it will lead to criminal liability,
• Whether it contains statements that exceed the limit of criticism against the integrity of the country or state leaders,
• Whether it contains defamatory statements,
• Whether it constitutes a crime.

Therefore, it is necessary to evaluate whether the posts fall within the scope of freedom of expression and criticism. If it is clear without any doubt that the posts in question exceed the limits of criticism and fall into any of the above-mentioned situations, the termination of the employment agreement by the employer for just cause may come to the agenda.

5.     Termination of Employment Agreement with Valid Reason Based on Employee’s Social Media Posts

As it is known, pursuant to Article 18 of the Labor Code, when terminating the agreement of an employee who benefits from employment security, the employer must rely on a valid reason arising from the employee's competence or behavior or the requirements of the enterprise, workplace, or business. Since the termination of the employment agreement for a valid reason based on the social media posts of the employee means termination of the employment agreement for the reason arising from the employee's behavior, it is necessary to evaluate within this scope.

Reasons arising from the employee's behavior refer to the employee's behaviors contrary to the agreement, affecting significantly and adversely the performance of the work in the workplace but are not on the level of nature and severity of the justified reasons stipulated in Article 25/II of the Labor Code, which entitle the employer to immediate termination. In addition, the employee's behavior can only be a valid reason if it causes negativity in the workplace[5]. As a matter of fact, the Court of Cassation has also ruled that the employment agreement may be terminated for valid reasons as a result of social media posts that are contrary to the agreement and cause negativity in the workplace or the use of social media that will negatively affect the workflow:

"Although it is clear that simply sharing a call for the reinstatement of dismissed workers cannot be a reason for termination, the fact that the plaintiff, who is still working, liked the advertisement ... including the call not to consume ... is a breach of the duty of loyalty. Although this behavior of the plaintiff was not justified, it caused negativities in the workplace and the continuation of the employment relationship became unexpected for the employer. It should be accepted that this termination is based on valid reason" (Decision of the 9th Civil Chamber of the Court of Cassation numbered 2015/18604 E., 2015/26062 K.)

"Although the statements made by the plaintiff in the post on the Facebook site do not constitute a direct insult to the employer, it is erroneous to decide to reinstate the plaintiff, ignoring the fact that this event will disrupt the working order and cause negativities in the workplace and that the continuation of the employment agreement can no longer be expected from the employer and that such behaviors constitute a valid reason for the termination of the employment agreement, and it is a reason for reversal" (Decision of the 7th Civil Chamber of the Court of Cassation No. 2015/29903 E., 2015/25583 K.)

"It is understood that the plaintiff used the computer for work purposes outside of its purpose by accessing the internet, shopping, and game sites more than once during working hours and that he did not spend his time on the performance of work during this period. The completion of the work undertaken or the absence of damage to the employer does not eliminate this negative behavior. The plaintiff violated his side obligation. It is understood that this behavior caused negativities in the workplace like other employees and that the continuation of the employment relationship became unpredictable for the employer. The employer's termination of the employment agreement is based on the reason arising from the plaintiff's behavior. It is erroneous to accept the lawsuit as written instead of dismissing it." (9th Civil Chamber of the Court of Cassation decision numbered 2008/36305 E., 2000/12393 K.)

To summarize, the employee's social media posts or social media use,

• If it is not as severe as grounds for just termination and causes significant negativity in the workplace; and
• If it significantly affects the performance of the work and makes the continuation of the employment relationship unbearable

the termination of the employment agreement for valid reasons may come to the agenda.

6.     Conclusion

In line with the explanations above, during the use of social media and sharing social media posts, which is commonly used today and considered as an exception not to use it anymore, the employee should;

• Make sure that his/her actions do not constitute just cause for termination,
• Observe their duty of loyalty to the employer and act in accordance with this obligation,
• Avoid making posts that may directly or indirectly harm the employer,
• Not cause negativity in the workplace with their social media use and social media posts.

If the employer believes that the employment relationship is not sustainable due to the social media post in question, before terminating the employment agreement, the employer should be sure of;

• Whether the post in question falls within the scope of freedom of expression and criticism,
• In the case of termination for just cause, the relevant post or social media use is severe enough to cause just termination,
• In the case of termination for a valid reason, the reason should cause significant negativities in the workplace and makes the continuation of the employment relationship unbearable,
• If there is a termination due to political posts, whether the post gives rise to criminal liability, whether it contains insulting expressions, whether there are statements that exceed the limit of criticism against the integrity of the country or state leaders.

[1] Fuentes-Bobo vs. Spain

[2] 9th Civil Chamber of the Court of Cassation Decision No. 2009/38310 E. and 2012/2613 K.

[3] 9th Civil Chamber of the Court of Cassation Decision No. 2016/17532 E. and 2017/12196 K.

[4] 7th Civil Chamber of the Court of Cassation Decision No. 2015/37679 E. and 2016/3462 K.

[5] 22nd Civil Chamber of the Court of Cassation Decision No. 2011/10209 E. and 2012/6210 K.

Tagged with: Labor Law, Employment Law, Labor Code, 4857, Termination of Employment Agreement, Ozay Law Firm, Yagiz Orskiran