Turkish Law Blog

Psychologıcal Harassment in the Workplace; Mobbing

Mehmet Burak Küçükislamoğlu Mehmet Burak Küçükislamoğlu/ Nesil Law Group
07 July, 2019
261

1. Description of Mobbing:

The aim is to intimidate, passivate, cool off, not to do or to dismiss the work carried out by one or more persons in the workplaces for the other person or persons; harms the personal values, professional status, social relationships or health of the victim or victims; malicious, deliberate, negative attitudes and behaviors. Mobbing, as well as people of the same level and,  can do against each other, especially; it is very common in hierarchical groups and in workplaces where the strong-weak distinction can be made clear.

2. Cause of Mobbing

There are many factors that are responsible for the emergence of mobbing. Especially in today's increasing unemployment rates, the downsizing tendencies of firms due to the frequent economic crises and the competitive environment created by new career theories have increased mobbing behaviors significantly. Research has shown that mobbing is not only an event but a gradual process. In the early stages of harassment, the victim is often exposed to behaviors that are not easy to identify as they are indirect and wise. Subsequent direct offensive actions appear. The victim is clearly isolated and humiliated in society. Eventually, all physical and psychological means of violence are used.

3. Legal Struggle Against Mobbing:

The greatest duty in the fight against mobbing falls on the state. Mobbing acts should be entered into the law as a crime and sanctions should be put forward. Increasing mobbing cases in our country in recent years, victims are no longer silent, we see that they seek their rights in the face of psychological harassment in the workplace. Although there is no specific legal regulation against mobbing, the Constitution, the Code of Obligations, the Labor Law and the Civil Code contains provisions on attacks on personal rights. Mobbing is often seen as a systematic behavior that employers use to reduce compensation while avoiding compensation from the person who is dismissed. Persons exposed to mobbing suffer psychological harm not only in their work lives but also in their private lives due to the moral pressure they experience in the workplace. First of all, mobbing should be regarded as a negative behavior towards human dignity and targeting human rights. In Turkish law, the relevant provisions of the Labor Law are interpreted and mobbing is the subject of lawsuits and defined in the Supreme Court decisions. With the new Code of Obligations, awareness is increasing day by day.

4. The problem of Proof:

The most common problem faced by the mobbing victim in practice is the problem of proof. Since there is no regulation on mobbing in Turkish Law, there is no special regulation on the burden of proof. As a matter of fact, although mobbing began to enter the agenda of the German labor courts, especially in the early 2000s, it is interesting to note that only three of the events that come before the court's award compensation. For example, the Sachsen State Labor Court, in its judgment of 17.2.2005, pointed to the ambiguity of the concept of mobbing and rejected the case on the grounds that there was insufficient data on violating behavior in terms of both general personality rights and health deterioration. In order to find solutions to the problems encountered in practice in terms of proof, the French law deemed it sufficient for the victim of mobbing to prove only the objective conditions of mobbing, whereas the burden of proof was an objective practice stipulated by the legal order. In the Belgian legal system too, the worker does not have to prove that he has been subjected to mobbing, but he must prove that the complained party has not taken any action or conduct prohibited by law, which provides the worker with real protection.

5. Criminal Responsibility of the Perpetrator of Mobbing:

When the behaviors performed in a certain process within the scope of mobbing are taken as a whole, it can cause harmful effects such as intimidation, insomnia, depression, anxiety, crying crises, forgetfulness, susceptibility, reticence and immobility, and suicide. Especially at the beginning of the mobbing process, behaviors generally occur within the framework permitted by law. Behaviors that are a reflection of the usual conflicts among people are not important in terms of criminal law. On the other hand, in the later stages of the mobbing process, conflict becomes independent, and as the process extends, the likelihood of crime types increases.he behaviors performed during the mobbing process have a multifaceted form of appearance and therefore bring about many types of crime such as sexual assault and sexual harassment,  intentional injury, suicide, insult, algebra, persecution and disturbing the peace and tranquility of people.

In fact, even if the employer is inactive in the face of mobbing, it may require criminal liability for certain crimes. The perpetrator, who is legally obliged to prevent the result from the direct law, is held responsible for the result as if he had personally realized the result.

6. Supreme Court Decision on Mobbing :

“…In the present case, it appears that the plaintiff had worked in the procurement department and claimed that the employment contract had been unfairly terminated. It is not appropriate for the court to conclude that the employment contract was unjustly terminated by the plaintiff at the end of the trial. According to the evidence in the file, the plaintiff was subjected to different treatment in the defendant's workplace due to a testimony,the defendant was taken, the place where he was working was changed without written consent, and he was subjected to some unsubstantiated charges that could not be proved that there was a relationship with a driver working in the workplace,it is understood that all these practices should be accepted as mobbing for the plaintiff and that the plaintiff has rightfully terminated the employment contracts, severance pay should be taken under the provision of the decision to refuse to refuse.”(9. HD. 2010/35500 E. 2012/44486 K. 27.12.2012)

“… The contents of the file and the evidence collected, the plaintiff had been insulted by his chief when he had previously worked in the trousers department, psychological harassment - mobbing has been subjected and therefore it is understood that the transfer to the jacket section has been made. Giving the worker back to the same section gives the worker the right to terminate. Therefore, in writing, the provision of the provision is wrong, while the requestor's demands for severance indemnity must be ruled and the requestor's requests for notification indemnity are rejected.”(9. HD. 2008/375 E. 2009/15531 K. 02/06/2009)

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