Mobbing, which we can describe as psychological attacks and intimidation in the workplace, is not a phenomenon that occurs in a day. Like the famous Italian saying "Rome non fu fatta in un giorno". It usually involves long enough to change or differentiate their roles in the process in terms of the offender(s) and the target individual(s) (Leymann, 1996). Typically during the mobbing process, the situation gradually worsens as the day progresses, so a victim may not perceive certain attacks as parts of a cohesive whole.
- It took me a while to realize that I was being abused. [teacher, female]
- I was not aware that the problem was escalating. [financier, male] (Chomczyński, 2020:56).
Mobbing in the workplace is a wide-ranging social event that includes not only the perpetrator and the victim, but also the bystanders, who make the process open to wider communities and sometimes to the public.
Today, “mobbing” gains meaning mainly as an emotional attack against a person or persons by one or more people systematically for a certain period of time in workplaces. It is often referred to as acts of mobbing and harassment in the workplace.
Since it is a concept that has just entered the literature, there are problems in giving the Turkish equivalent of the concept of mobbing and there is a terminology problem. Experts working on mobbing mean that this word means "psychological harassment at work", emotional harassment at work, "psychological terror at work", "intimidation", "emotional violence at work", "bullying at work", moral harassment at work", "Harassment”, “psychological attack aimed at intimidation in the workplace” (İlhan, 2010).
The purpose of mobbing is to remove and pacify the person from the workplace with malicious intent and intent. They are actions that can be applied to the individual in the workplace, even by his superiors, the employer himself, other colleagues or subordinates. People who are subjected to mobbing claim that these practices harm their social relations, health and they are victimized.
The implementation of mobbing in the workplace takes place in four stages: The first stage is characterized as the critical event and the triggering stage. At this stage, a fundamental event that triggers the process occurs. In the second stage, there is a state of conflict and conflict between individuals, and stigmatization and some behaviors that may harm the individual are observed. In the third stage, the management is also involved in the process and the characteristic events (unfounded rumors, psychological harassment behaviors, etc.). The fourth and final stage is called dismissal, the vulnerable person either quits his job or is fired.
According to the results of a study conducted by Keashley and Jagatic in 2003, mobbing methods applied to individuals in the workplace are grouped under the following headings (Acar & Gönen, 2008):
- To change the tasks that are difficult to perform in terms of the tasks given to the job and to negatively affect the performance or to impose tasks that will negatively affect the performance,
- To isolate from society by excluding and not communicating;
- Engaging in acts that destroy one's self-esteem, such as humiliation and ridicule;
- To humiliate or criticize in public,
- Spreading false rumors about his private life or personal matters.
Bullying, violence, sexual harassment and conflict are concepts similar to mobbing and should not be confused with mobbing. The concept of "bullying", which is used as bullying, includes behavior patterns that are slightly more rude than mobbing. Violence manifests itself through the use of physical force; This is not the case in mobbing. Although conflict is more similar to mobbing, the systematic and purposeful nature of mobbing does not exist in conflict.
It is a phenomenon that causes long-term damage to the individual exposed to mobbing, relations between employees, organizations, and the environments in which organizations are effective. In terms of the individual, apart from job loss, the security dimension, mental and physiological health problems, the employer's decreased work efficiency and the consequences that must be endured, and the economic dimension of these are a subject that needs to be evaluated broadly. Studies have also been carried out on the effects of mobbing on the total economy in states that have drawn the legal framework of mobbing and have seen and evaluated its legal effects. This cost appears to be quite high. For example, the cost of mobbing for a business with a thousand employees in Germany was calculated as 112000 dollars direct cost and 56000 dollars indirect cost. Medical examination fees, diagnosis and treatment process costs of mobbing victims, the burden of early retirement and the related insurance costs are the parts of this cost.
MOBBING CONCEPT, HISTORY, TYPES
1.1.1 The Concept of Mobbing
Mobbing in the workplace is a practice that is carried out in a more subtle way than classical bullying, the dynamics of which change depending on many factors and according to the situation. Today, mobbing is seen as a workplace problem by the law and therefore it shows itself as a common problem that is sought by managers and business owners.
In general, mobbing events are defined as acts of emotional and/or psychological violence against a specific person in the workplace. These actions affect an individual's physical, mental, and emotional health and job performance. These actions can take many different forms, depending on the perpetrator, the victim, and the working relationship between them.
As a result of mobbing practices, a very hostile work environment is created towards a particular employee. These practices are often carried out directly or indirectly by several members of the work team, often led by a harasser. In many cases, this causes the abused person to quit their job.
The actors of the mobbing event consist of the attacker(s), the victim(s) and the spectator(s). The roles here may change during the mobbing process, and the determination of mobbing in this long process may sometimes require expertise. Although the first thing that comes to mind in a workplace is that mobbing will be applied by the employer or his proxies or, in a more general definition, by the "superior" against the "subordinates", mobbing is possible at any level, depending on the situation. Mobbing types are also named according to this situation.
In order for a systematic behavior to be characterized as mobbing, it must first be systematic, the behaviors in the process must be connected, the behaviors must be intimidating, discriminatory and difficult for the person, and the applied behaviors must be at a level that will harm the person's personality, dignity and health.
In the Anglo-Saxon legal system, bullying is used instead of mobbing. Although mobbing is a psychological attack, it differs from this concept as it includes a distinct threat and attack element. Besides bullying, the definitions of "bossing and staffing" used instead of mobbing should also be examined. “Bossing” defines the harassment increasingly applied by the employer and the supervisor, and “Staffing” defines the psychological harassment applied by the employees to the employer and the supervisor. In this case, the definition of mobbing that fills the act of mobbing in the workplace can be explained as the action taken against a subordinate at the workplace, as well as by the employer or his representative, or by the employee who is the superior or equal position of the person being mobbed (Erdem & Parlak, 2010).
1.1.2 History of Mobbing
The history of mobbing is undoubtedly as old as the history of humanity. It is possible that mobbing has been seen in various forms since human societies began to live together in the hunter-gatherer period. Because there are traits in the creation of man that can be considered prone to mobbing. However, it emerged as a concept in the second half of the 20th century. The term mobbing was first used by the etiologist Konrad Lorenz in the 1960s to describe the abusive behavior of a group of animals and their attacks against a weaker and unprotected animal. Later, Swedish psychologists used the term mobbing to describe cruel behavior among school children (Davenport, Schwartz & Elliott, 2008; Leymann, 1996). Later, Leymann noticed that some behaviors similar to those observed among animals and children were also exhibited in the workplace, and he used the term mobbing to describe the intimidating behaviors seen in the workplace (Leymann, 1996). The root of the word “mobbing”, “mob” is a shortened version of the Latin mobilusmus vulgus meaning mobile crowd. An irregular community of people is used in English to mean a law-breaking community.
Research results show that mobbing is quite common. In a study including European Union countries, 12 million people reported that they were mobbing, half of the workers in England were victims of mobbing, ten to fifteen percent of suicides in Sweden within a year were caused by mobbing. revealed that people are a follower of this as a family member and friend (Tınaz, 2006).
1.1.3 Types of Mobbing
Mobbing can occur in various ways in the workplace. It can be from subordinates to superiors, from superiors to subordinates, or among those at the same level. Apart from this, mobbing is subjected to various classifications methodically.
If mobbing is done by superiors/superiors against subordinates in a hierarchical environment, it is called "vertical mobbing". The level of being above is not sought here. The more senior colleagues of the same level can also enter this class. This type of mobbing is mostly seen in institutions/workplaces where the hierarchical structure is strong (Yavuz, 2007:42).
Vertical mobbing is not just from top to bottom. If it is from the managers to the lower level, it is called "vertical mobbing from the top down" and if it is against the managers from the lower levels, it is called "vertical mobbing from the bottom up". However, the second type of mobbing is a difficult type of mobbing. It often requires subordinates to form a union among themselves for its realization. However, despite its difficulty, vertical mobbing from bottom to top emerges as a type of mobbing encountered in workplaces.
“Horizontal mobbing”, on the other hand, is the type of mobbing applied by individuals working at the same level against each other.
“Strategic mobbing”, on the other hand, is a type of mobbing applied by the perpetrator with the aim of achieving a goal that is in his favor. Planned attrition can be carried out in the workplace in order to eliminate a colleague who is a competitor for promotion or to pacify or remove a strong subordinate who is likely to replace him. Here is a calculated strategy; the perpetrator's goal may not necessarily be to remove the victim from the workplace; It is sufficient to achieve the goal if it is worn out enough to prevent it from rising.
In "immoral (deviant) mobbing", there is no obvious reason for the perpetrator to harass the victim. The perpetrator himself is a pathological personality and applies the harassment that leads to the mobbing process for the sake of satisfaction. They engage in this type of psychological harassment only to get satisfaction from the torture they inflict and the effect they have had.
“Management mobbing” is also an example of top-down vertical mobbing and occurs when supervisors consent to harassment of an employee. It is an asymmetrical harassment due to the great power imbalance in the working environment that exists between the victim and the perpetrators. Coercive methods are used to dismiss the victim, such as assigning tasks that are known to be incomplete. This type of mobbing also aims to prevent the subordinate from receiving any compensation at the time of dismissal. Because if the victim quits the job with his own decision, he will not be able to receive various compensations such as severance and notice pay that the employer must pay.
“Intimidation mobbing” occurs when the personality or actions of the victim do not fit the working environment. It can be vertical or horizontal, due to differences in opinion and behavior between the victim and the perpetrators. For example, in a workplace where legally problematic works are carried out, practices are carried out to intimidate those who doubt the legitimacy of these works. In this way, everyone is exposed to a victim as an example of what can happen in the event of a riot.
1.1.4 Effects of Mobbing on Victims
Mobbing has various effects on the victim, and these effects not only affect the material and spiritual health of the individual and his family, but also have the potential to create social effects that can reflect on the whole society. It can also lead to economic loss through decreased productivity in the workplace. In a study conducted in 2009, the effects of mobbing on the victim are shown in Figure 1.
TABLE 1‑1 The effects of mobbing on the victim (ÖZLER & MERCAN, 2009:119)
Those who are exposed to mobbing mostly choose not to lose their position and not to reflect the intimidating activities. It is claimed that health problems occur mostly in those who are exposed to these intimidating activities. According to studies conducted on individuals subjected to mobbing, it has been reported that stress increases in individuals subjected to mobbing or in individuals who state that they have been exposed to mobbing, and complaints due to psychological and physical disorders increase due to increased stress. Headache, stomach problems, high blood pressure, sleep problems, joint pain, tachycardia, social isolation, changes in eating habits, and concentration disorders have been reported in individuals who are exposed to mobbing (Acar & Gonen, 2008).
Since mobbing brings some burdens to companies with its legal consequences in business life, it has emerged as an important view in terms of the effects of demographic characteristics of individuals exposed to mobbing on being exposed to mobbing and/or mobbing. Since a study on this subject has been examined, significant relationships between age and position and exposure to mobbing have been observed.
MOBBING IN TERMS OF HUMAN RIGHTS AND LAW
When mobbing is evaluated within the legal system, mobbing is directly considered a crime in the laws of Scandinavian countries. Although Sweden is among the countries that act very sensitively in this regard, with the Occupational Safety and Occupational Health law published in 1994, “harassment in the workplace” has been defined as a crime. Similarly, the definition of psychological violence was added to the same law in Finland in 2000. With union activities, mobbing has been recognized at the legal level in Germany and mobbing has been seen as a violation of collective bargaining in collective bargaining agreements, mobbing victims have the right to demand early retirement. Germany's important steps in mobbing emerge as a country. German laws and companies such as Volkswagen, with initiatives such as establishing public centers all over the country where mobbing can get support and assistance, including mobbing in employment contracts, creating units to apply for mobbing in the enterprise, dismissing the perpetrator, adding mobbing to the courses taught within the scope of occupational health in universities. can be seen as a pioneer in the field. In French laws, psychological harassment in the workplace was accepted as a judicial crime, and it was evaluated with a one-year prison sentence and a fine of fifteen thousand Euros (Tınaz, 2006).
Since mobbing is an attack on basic human rights, human dignity and personal rights that are closely tied to the individual, it should first be considered as a human rights issue. One of the first legal texts put forward by the international community in terms of human rights is the Universal Declaration of Human Rights, which was proclaimed by the United Nations General Assembly's Resolution 217 A(III) dated 10 December 1948. Article 12 of this declaration states: “No one's privacy, family, home or correspondence shall be arbitrarily interfered with, nor shall his honor and reputation be attacked. Everyone has the right to be protected by law against such interference and attacks. Here, it is stated that the fundamental rights under attack by mobbing should be protected and this protection should be guaranteed by law. Although this declaration of the UN is advisory as a "General Assembly Resolution" and is not binding, it can be said that it has become customary law as the common value of the modern world in terms of basic human rights.
Another important international legal instrument against mobbing in terms of human rights is the European Convention on Human Rights, which is also binding and an international treaty of which Turkey is a signatory. Article 3 of the Convention states that no one shall be subjected to torture or to inhuman or degrading treatment or punishment. This protection, which is accepted as one of the fundamental values of any democratic society, is an inviolable right and indispensable quality of every human being. The ECHR imposes heavy obligations on states in this regard. The ECHR, with this article, prohibits torture against individuals, gives the duty to avoid inhuman or degrading treatment, and to protect everyone under its jurisdiction under all circumstances. The degrading treatment referred to in the article is also characterized in that the individual is subject to humiliation in front of others and any inhuman treatment is degrading. Therefore, mobbing, especially harassment and racist behavior and any form of discrimination can be considered as degrading treatment. Therefore, taking the necessary measures against mobbing is an obligation of the states parties with the European Convention on Human Rights.
The platform where international legislation on mobbing, a disease of the working world, can be created is undoubtedly the International Labor Organization (ILO), one of the specialized institutions of the UN. The first study conducted by the ILO on mobbing was the report titled “Violence in the Workplace” published in 1998. The main purpose of the report is; It is to provide the necessary information for the realization of the regulations and initiatives that will eliminate workplace violence as soon as possible (Savaş, 2006). Among the Conventions of the ILO that are binding for the ratifying countries regarding mobbing, the Discrimination (Work and Occupation) Convention No. 111 approved by Turkey in 1966, Convention No. 155 Concerning Occupational Health and Safety and the Working Environment, approved in 2004, and Occupational Health and Safety Convention No. 155 approved in 2004. There is Convention No. 161 on Health Services. As can be seen, Turkey has signed and ratified 3 important conventions aimed at regulating working life, protecting the fundamental rights and freedoms of the individual, and preventing mobbing, thus making it binding in terms of domestic law.
2.1 Mobbing in Turkish Legal Legislation
2.1.1 Constitution of the Republic of Turkey
Although mobbing is a psychological and systematic attack that takes place in the workplace, first of all, it is a problem in which the most fundamental rights and freedoms of the individual are violated. Therefore, it is natural and necessary to establish a relationship with the Constitution, which is the basic legal text in which the fundamental rights and freedoms of the individual are protected. From this point of view, the most important legal legislation on a national scale in terms of mobbing is undoubtedly the Constitution, which guarantees the fundamental rights and freedoms of the individual.
In the 1st paragraph of Article 17 of the Constitution, which is under the main title of "Fundamental Rights and Duties", the provision "Everyone has the right to life, to protect and develop their material and spiritual existence" is included.
Starting with the decisions taken on April 15, 2014, July 17, 2014, October 15, 2014 and February 26, 2015, the Constitutional Court addressed the concept of mobbing in the context of individual rights and freedoms, with a total of 44 decisions taken until November 2020, all of which were the result of individual applications. 30 of the applications were made by men and 12 by women, and the identities of 2 of them were not disclosed. The Constitutional Court, in its decisions, described the "mobbing" practices as psychological harassment and ruled that these practices violated the "right to protect the material and spiritual existence of the person" guaranteed in the first paragraph of Article 17 of the Constitution. The Constitutional Court, in its first decision dated April 15, 2014, defined mobbing as “a behavioral group that constitutes mobbing and that includes psychological harassment, violence and intimidation”. It is also among the decisions taken by the Constitutional Court that if these practices reach a certain level of severity, they can be considered within the scope of the prohibition of torture, torture and intervention incompatible with human dignity, which is regulated in the third paragraph of the same article of the Constitution. In terms of "protection of material and spiritual existence", which is defined as the right of the individual, the obligation of the state is to avoid harming individuals physically as well as spiritually and to take measures to prevent harm by third parties. The "state's obligation to protect employees" in the second paragraph of Article 49 of the Constitution also requires taking necessary measures in terms of mobbing. The state has the duty to take precautions against workplace harassment practices such as mobbing, which harms the individual's personal rights and hinders the right to be morally healthy and to work in a peaceful work environment, and to protect individuals from these practices and their harmful effects. In summary, it can be said that with the Constitution, the state undertakes the duty to protect the rights and freedoms of individuals against mobbing and to prevent any harm to these rights, both as a positive obligation and a negative obligation.
The right to respect for private and family life is regulated in article 20 of the Turkish Constitution and article 8 of the European Convention on Human Rights.
“... Everyone has the right to demand respect for his private and family life. Inviolable confidentiality of private life and family life."
In the decisions of the Constitutional Court, respect for private life has also been evaluated within the scope of the rights and freedoms of the individual violated by mobbing.
The Constitutional Court basically listed the positive obligations that the state should undertake within the scope of the first paragraph of Article 17 of the Constitution regarding actions, actions or omissions that threaten the moral integrity of employees by reaching an unbearable degree of weight and intensity in terms of their impact on their lives and are described as psychological harassment:
1) Taking measures to prevent the behavior of psychological harassment towards employees,
2) Establishment of control mechanisms to examine complaints effectively,
3) Eliminating the difficulties in front of employees who need to be offered positive privileges and ensuring that they benefit from facilitating opportunities,
4) To remedy the material and moral damages suffered by those who are exposed to intimidating and deliberate attitudes, or to establish the legal infrastructure for the resolution of the disputes that arise, and to ensure that those responsible are punished within the legal framework in cases that constitute a crime,
5) Making use of effective procedural safeguards in which victims can defend their rights in fair conditions in lawsuits filed for compensation of damages, and explaining the conclusions reached by the courts with relevant and sufficient justifications, in a way that will protect the guarantees contained in fundamental rights as a result of the proceedings.
The Constitutional Court also did not accept the allegations in its Levent Tütüncü Decision dated 8 August 2020 that “mobbing is not defined as a crime in Turkish law and separate lawsuits should be filed regarding crimes alleged to be mobbing”. In the concrete case, the plaintiff filed a lawsuit seeking compensation for the damages he claimed to have occurred due to psychological harassment in the workplace; Court martial; He rejected the application, stating that "the law does not define a behavior style called mobbing, and that a lawsuit should be filed separately for each action and transaction". Evaluating the individual application that comes before it after all legal remedies have been exhausted, the Constitutional Court states that "in the case of the continuous repetition of the actions, actions or omissions that individuals claim to have been exposed to in the working environment in the decisions of the judiciary, they contain arbitrariness, are systematic and deliberate, and have the purpose of intimidation and exclusion, psychological reminding that "it is under the provision that harassment can be mentioned" and that this situation is also defined as mobbing.
2.1.2 Turkish Civil Code No. 4721
There is no special article about mobbing in the Civil Code. However, it is possible to evaluate article 2 of the Civil Code, known as the "principle of honesty", as a relevant article on mobbing. This item is as follows:
“Everyone must abide by the rules of honesty while exercising their rights and fulfilling their obligations. The legal order does not protect the open abuse of a right.”
Therefore, both employers and employees have to regulate all their behaviors, including those that may have legal consequences against each other in the horizontal and vertical hierarchy, within the framework of this principle. Since mobbing is a process consisting of actions incompatible with goodwill, first of all, it will be necessary to accept that it will constitute a violation of Article 2 of the TMK.
In addition, as stated in the 2nd paragraph of Article 24 of the TMK, “…any attack on personal rights is unlawful.”
The provision also reveals that the act is contrary to the TMK, considering that mobbing is an attack on the personal rights of the individual, which is closely tied to the individual's own act.
Turkish Code of Obligations No. 6098
As is known, the new Turkish Code of Obligations entered into force on 1 July 2012. The first mobbing regulation at the law level was also included in the Turkish Code of Obligations for the first time, although it was not named as such. Article 417 of the relevant TCO in the Second Part, which includes provisions on Private Debt Relations, is as follows:
“ARTICLE 417- The employer is obliged to protect and respect the personality of the employee in the service relationship and to ensure an order in accordance with the principles of honesty in the workplace, and to take the necessary measures especially to prevent the workers from being subjected to psychological and sexual harassment and to prevent further harm to those who have been subjected to such harassment.
The employer, to take all necessary measures to ensure occupational health and safety in the workplace, to keep the tools and equipment in full; Workers are also obliged to comply with all measures taken regarding occupational health and safety.
Compensation of damages due to the death of the worker, damage to his bodily integrity or violation of personal rights due to the employer's unlawful and contractual behavior, including the above provisions, is subject to the provisions of liability arising from the breach of contract."
Of course, the “psychological harassment” mentioned here is not determined as a crime in the context of criminal law, but as an action that creates a compensable debt relationship under the law of obligations, it imposes the responsibility on the employer. Therefore, the employer, who is defined as responsible by the Law, will not be able to escape responsibility whether mobbing is done vertically or horizontally. I am of the opinion that the type of liability here can fall within the scope of strict liability. Because there is a responsibility of care here.
The justification of Article 417 is also important. This justification is often included in the AYM's Decisions on mobbing. The rationale is as follows:
“With the amendment, the obligation to protect all personality values of the worker, including honor and respect, was regulated, besides sexual harassment, other psychological harassment (mobbing) was counted in the category of reasons violating personality values, between Article 77 of the Labor Law and the relevant regulations of the Code of Obligations. an integrity has been ensured, the discussions on the legal nature of the liability arising from the service contract have been terminated with the regulation, it has been decided that the provisions of the contractual liability law will be applied in the compensation of the damages due to the death and bodily integrity damage caused by the breach of the contract or the violation of the personal rights, and the article has been accepted as the 417th article due to the concurrency. been done.”
2.1.4 Turkish Penal Code No. 5237
As it is known, in accordance with the principle of "legality in crime and punishment", which derives its source from Article 2 of our Constitution and is supported by various jurisprudence, in order for an act to be considered a crime, it must be clearly defined in the law. Mobbing is not specifically named as a crime under the TPC. However, many of the acts that constitute mobbing have been defined as crimes within the scope of the TPC. Let's take a look at these crimes:
- Crime of Torment (Art. 96)
- Threatening Offense (Art. 106)
- Violation of Freedom of Work and Labor (Art. 117)
- Offense of disturbing the peace and tranquility of persons (Art. 123),
- Defamation Offense (Art. 125)
- Offense of Violation of the Privacy of Private Life (Art. 134)
Mobbing is an application that consists of actions that can include at least one or more of these crimes. In particular, together with the "Offence of Insult" (Art. 125), which is examined under the title of "Offences Against Honor", or "Violation of Freedom of Work and Work", which is dealt with under Article 177, Art. The "Crime of Torment", which is ruled under the scope of 96, includes elements that can all take place together within the scope of mobbing. Since mobbing is a crime that requires a process and consists of actions that are applied more than once, it should also be considered in terms of the provisions of the TCK Art. It should be evaluated within the scope of "chain crime" examined under 43. Therefore, in terms of repetitive crimes of the same nature, TCK Art. The aggravating factors contained in the provisions of 43 need to be taken into account.
2.1.5 Civil Servants Law No. 657
There is no article directly related to mobbing in the Civil Servants Law No. 657. However, Article 8 of the Law, titled "Behavior and Cooperation", states that "State officials are obliged to show that they are worthy of the reputation and trust required by their official titles, with their behavior inside and outside the service. It is essential that civil servants work in cooperation.” Since it contains the provision, it will be possible to deduce that the behaviors and practices that will fall within the scope of mobbing will constitute a violation of Article 8 of the CSL.
2.1.6 Labor Law No. 4857
There is no special provision regarding mobbing in the Labor Law No. 4857, the purpose of which is defined in Article 1 as “…regulating the rights and responsibilities of employers and workers employed on the basis of an employment contract regarding the working conditions and working environment”.
Pursuant to Article 8 of the Labor Law, it is stipulated that the employee and the employer will be indebted to each other with the employment contract. The main debt of the worker is to work as a dependent, and the main debt of the employer is to pay wages. Dependence is considered a duty of loyalty. On the other hand, the employer has the obligation to observe the worker and treat them equally. Mobbing practices conflict with this obligation and contain elements that may constitute a violation of the employer's obligation to both observe and act equally.
2.1.7 Turkish Human Rights and Equality Institution Law No. 6701
In order to prevent discrimination and to operate in line with these principles, to effectively fight against torture and ill-treatment and to fulfill its duty as a national prevention mechanism in this regard, the "Human Rights and Equality Institution of Turkey Law" dated April 20, 2016 and numbered 6701, the "Human Rights and Equality Institution", which is an institution with a special budget, Rights and Equality Institution” was established.
In subparagraph (g) of Article 2 of the Law titled "Definitions"; The definition of “mobbing in the workplace” was made as follows:
“Acts intentionally carried out to alienate, exclude, or tire a person from his/her job on the basis of discrimination enumerated in this Law”
Again, in subparagraph (j) of the same article, the definition of "Harassment" is made as follows:
“Any act of intimidating, humiliating, humiliating or embarrassing that aims to violate human dignity or has such a result, based on one of the grounds listed in this Law, including its psychological and sexual types”
Both definitions have similarities with the definition of mobbing, and within the framework of the aforementioned Law, the opportunity to apply to the Human Rights Institution of Turkey has been given to those who have been subjected to psychological harassment in the workplace. The Law's evaluation of the concept of mobbing at the workplace and psychological harassment in the workplace within the scope of discrimination violations is a very important development in this regard. At the same time, the opportunity to apply to victims is one of the first concrete steps in this regard in our country (Kaya, 2020).
2.1.8 Occupational Health and Safety Law No. 6331
The subject of mobbing or psychological harassment in the workplace is not clearly regulated in the Occupational Health and Safety Law, but since mobbing is a practice that impairs the mental and physical health of the employee, reduces work efficiency, causes work accidents and negatively affects the social life of the employee, the scope of occupational health and safety is directly covered. (İnciroğlu, 2013:103). Article 4 of the Law bears the title of "General liability of the employer" and it is stipulated in the article that the employer is obliged to ensure the health and safety of the employees regarding the work. Although these obligations of the employer, which are included in the article, are not clearly defined in the Law, it has been accepted in the doctrine that they also cover the risks related to the whole field of work, including mobbing. In this context, psychological harassment of another worker by the employer or its representatives or other senior management or another worker or tolerating such a practice, albeit implicitly, is considered a violation of the employer's obligation to watch over the worker. In case of such determination, an administrative fine is imposed on the employer. Apart from the administrative fine, the worker can also apply for pecuniary and non-pecuniary damages due to non-compliance with the "supervision obligation" imposed on the employer in the contract. The statute of limitations for these cases is ten years.
2.1.9 International Legislation Passed in Domestic Law
155 on Occupational Health and Safety and the Working Environment, which was accepted by the International Labor Organization (ILO) published in the Official Gazette dated 13/1/2004 and numbered 25345, approved by Law No. The relevant part of Article 3 of the Convention is as follows:
"For the purpose of this contract;
a) The term “economic lines of activity” includes all branches of employment, including public services.
b) The term “workers” includes all employed persons, including government employees.
e) The term "health", in relation to work, includes not only the absence of disease or infirmity, but also physical and mental factors that affect health in direct relation to hygiene and safety at work."
The definition of "mobbing" in the report titled "Workplace Violence in the Health Sector" prepared by the ILO in 2003 is as follows:
“A form of psychological harassment that involves the persecution of an employee or a group of employees with vengeful, cruel or malicious attempts to weaken or humiliate them through unjust and persistent negative attitudes and criticism, isolation from their social environment, gossiping or spreading false rumors.”
Article 26 of the First Part of the "(Revised) European Social Charter" published in the Official Gazette dated 9/4/2007 and numbered 26488, approved by the Law No. 5547 dated 27/9/2006:
“All employees have the right to work with dignity.”
2.1.10 Circular, Guide and Reports
The definition of psychological harassment in the information guide titled "Psychological Harassment at Workplaces (Mobbing)" prepared by the Ministry of Labor and Social Security in May 2014 is as follows:
"Performed by one or more persons in the workplaces for another person or persons, continuing systematically for a certain period of time, aiming to intimidate, pacify or remove from work; harming the personality values, professional status, social relations or health of the victim or victims; malicious, intentional, negative attitudes and behaviors."
The relevant parts of the Prime Ministry Circular on "Prevention of Psychological Harassment (Mobbing) at Workplaces" numbered 2011/2, which was published in the Official Gazette dated 19/3/2011 and numbered 27879, are as follows:
Mobbing in public institutions and organizations and private sector workplaces damages the reputation and honor of employees, reduces their productivity and negatively affects their working life by causing them to lose their health.
It is very important to prevent psychological harassment, which occurs in the form of deliberate and systematic humiliation, belittlement, exclusion, damage to the personality and dignity of the employee, ill-treatment, intimidation, and similar forms for a certain period of time, both in terms of occupational health and safety and the development of work peace.
In this respect, it has been deemed appropriate to take the following measures in order to protect employees from psychological harassment.
1. Combating psychological harassment in the workplace is primarily the responsibility of the employer, and employers will take all necessary measures to ensure that employees are not exposed to harassment.
2. All employees will refrain from all kinds of actions and behaviors that can be considered as psychological harassment.
3. Care will be taken to include preventive provisions in collective bargaining agreements to prevent cases of psychological harassment in the workplace.
4. A "Committee for Combating Psychological Harassment" will be established in order to monitor and evaluate the incidents of psychological harassment suffered by employees and to develop preventive policies.
5. Inspectors will meticulously examine the mobbing complaints and conclude them as soon as possible.
6. Maximum care will be taken to protect the private lives of individuals in the works and transactions carried out regarding the allegations of psychological harassment.
7. The Ministry of Labor and Social Security, State Personnel Presidency and social partners will organize training and information meetings and seminars in order to raise awareness about psychological harassment in the workplace.
The report titled "Psychological Harassment at Work (Mobbing) and Solution Suggestions" prepared by the Gender Equal Opportunity Commission of the Turkish Grand National Assembly in 2010 included the following issues regarding "psychological harassment":
"Mobbing refers to the psychological and even physical aggressive behaviors applied to the self-confidence of the person with the aim of intimidating the employee with a constant frequency, in a systematic way. In other words, in the workplace, a person or several people declaring a person undesirable, by excluding, verbally or verbally or otherwise. and to force absolute obedience by physical abuse, to intimidate and harass."
People who are exposed to mobbing become unable to do their jobs due to the size and effect of the damage they have suffered. Studies on the subject have shown that the shortest mobbing period is 6 months, the average duration is generally 15 months, and the period when the permanent effects of the process appear is 29-46 months.
When we look at which workplaces and which people are subjected to mobbing - according to research - it is seen that it is common in non-profit organizations, primarily in the health and education sector, and this is much more common in universities.
2.1.11 Related Judgments
The relevant parts of the decision of the Twelfth Chamber of the Council of State dated 1/7/2015 and numbered E.2011/5125, K.2015/4394 are as follows:
"... In the Prime Ministry Circular No. 2011/2 on the Prevention of Psychological Harassment (Mobbing) at Workplaces, it has been stated that psychological harassment in public institutions and organizations and private sector workplaces damages the reputation and honor of the employees, reduces their productivity and negatively affects their working life by causing them to lose their health, It has been emphasized that it is very important to prevent psychological harassment that occurs in the form of deliberate and systematic humiliation, belittlement, exclusion, damage to the personality and dignity of the employee, ill-treatment, intimidation and similar forms for a certain period of time, in terms of both occupational health and safety and improving work peace. Some measures have been taken to protect employees from psychological harassment.
The concept of mobbing by the Ministry of Labor and Social Security; perpetrated by one or more persons in the workplace for another person or persons, continuing systematically for a certain period of time, aiming to intimidate, pacify or remove from work; harming the personality values, professional status, social relationships or health of the victim or victims; defined as a set of malicious, intentional, negative attitudes and behaviors.
In the case at hand, it has not been clearly demonstrated that the disciplinary punishments given to him by both chief physicians due to their different acts were not subject to judicial review, and that mobbing was applied systematically and with the aim of intimidating him by his superiors. understandable..."
The relevant parts of the decision of the Second Chamber of the Council of State dated 13/7/2007 and numbered E.2007/1297, K.2007/3247 are as follows:
"... In the event that there is a defect in the fulfillment of the duties that the administrations are obliged to perform and a loss arises as a result of this defect, compensation for this damage by the administration is a requirement of the provision of Article 125 of the Constitution given above.
While public administrations perform the services they are obliged to do, they are also obliged to constantly control the operation of this service and to take the necessary measures during the execution of the service.
On the other hand, again, according to the established principles of Administrative Law, in order for non-pecuniary damage to be awarded, there must have been a heavy pain and sorrow as a result of an unlawful act or action of the administration, or the damage to the honor and dignity of the person concerned, or the occurrence of events that damage the physical structure of the person and lead to a decrease in his ability to live and earn. is; As it is accepted in the doctrine, non-pecuniary damage is not a means of compensation for a decrease in the property of the person concerned, but a means of moral satisfaction. The absence or inadequacy of other means of redress necessitates the monetary determination of non-pecuniary damage. It is obligatory to determine the non-pecuniary compensation to be appreciated in return for the non-pecuniary damage suffered due to the development and outcome of the event and the situation of the person concerned, in an amount that will not lead to enrichment due to the fact that it is a means of moral satisfaction, but to the extent that it expresses the nature and weight of the fault of the administration in the event.
In the event, .... the defendant administration has taken a hostile attitude towards the plaintiff, and the objectivity principle has been caused to be subjected to arbitrary treatment, as a compensation for the deep regret experienced by the defendant administration and the amount to be determined by the court to express the nature and gravity of the administration's fault in the event, While it should be decided to pay the plaintiff as moral compensation with legal interest, there was no legal right in establishing a provision to the contrary.
The relevant parts of the decision of the Supreme Court of Appeals General Assembly dated 25/9/2013 and numbered E.2012/9-1925, K.2013/1407 are as follows:
"... The dispute that came before the General Assembly of Civil Rights is gathered on the points whether moral compensation should be awarded due to psychological harassment (mobbing) for the benefit of the plaintiff in the concrete case, and whether the documents submitted to the file regarding the expenses incurred by the plaintiff due to displacement in terms of material compensation should be evaluated by the local court. .
... Mobbing in Turkish Law; It is expressed as all kinds of repeated ill-treatment, threats, violence and humiliation, systematically applied to employees in the workplace by other employees or employers. The most obvious examples of psychological harassment are preventing self-disclosure, interrupting, scolding loudly, constant criticism, acting as if the employee does not exist in the work environment, interruption of communication, disregard for ideas, baseless rumors, unpleasant allusions, not being given a qualified job, meaningless work being given and constantly replaced. changing, giving heavy work and the threat of physical violence (Tınaz, Bayram & Ergin, 2008:7,53,58).
As can be seen, in order for an act to be accepted as psychological harassment, it must be carried out by targeting a worker, spread over a certain period of time, and this situation must become systematic. Whether the specified conditions are fulfilled or not should be evaluated separately in each concrete case. Although the causes of psychological harassment vary, the aim is to ensure that the employee leaves the workplace.
As for the concrete event; It is understood from the scope of the file that the plaintiff, who is a 56-year-old married woman, was assigned for short periods of 9 months and 30 times by relocation.
It is understood that the defendant employer did not make a defense that the assignment made was a normal practice and was applied to other employees in similar situations, and that the plaintiff served as the sole lawyer in the risk settlement team. Although it has been claimed that other lawyers of the bank were assigned in a similar manner in the same period, this issue has not been proven. The necessity of the assignments, which took place within 9 months before the termination of the plaintiff's employment contract, has not been revealed in a concrete way.
As can be seen, this situation that the defendant lawyer is exposed to is in the nature of psychological harassment, and in this way, it is aimed that the plaintiff lawyer leaves the workplace by making him choose to resign or retire.
Today, challenging performance-based working conditions in workplaces bring intense and ruthless competition. In addition, some negative aspects of human character such as the desire to rise, the desire to protect his position and the desire to be in the spotlight can turn into negative actions with the stimulation of these ambitions. Psychological harassment practices in workplaces, which can turn into mobbing with the effect of various social and psychological triggers, constitute an important problem that needs to be solved in contemporary business life.
Mobbing, above all, threatens the fundamental rights and freedoms of the individual, which are guaranteed by the Constitution. In individual applications, the Constitutional Court seeks whether the positive obligations of the State, especially in terms of protecting the person's material and spiritual existence, are fulfilled.
On the other hand, although it is not clearly written in the laws, it is seen that the practices that are revealed by mobbing and that create psychological harassment on the individual have a counterpart in the context of both Criminal Law and Civil Law. The fact that mobbing has taken place as a concept in Turkish law has also been accepted in the latest AYM Decisions.
When both the provisions of the International Labor Organization (ILO) Conventions and Decisions and the publications and reports prepared by the Ministry of Labor and Social Security are examined, it is seen that the existence of the following conditions must be sought in order for workplace practices to be described as mobbing:
Implementation of the practices by the managers and/or other employees in the workplace or condoning such interventions,
The practices are repeated in a way that will create continuity, contain arbitrariness, be systematic and deliberate, aim to intimidate and exclude,
It is of a nature that harms the victim's personality, occupational status or health, or poses a risk of serious harm.
The causes of mobbing are also important in the phenomenon of mobbing. First of all, mobbing may occur for personal reasons depending on the flow of a job and the behavior of the job. The person continues his aggressive actions alone or by finding supporters. The second reason is the institutional one, and here the authoritarian management style often brings with it mobbing. In addition, hierarchical organization within the unit makes it difficult to prove the mobbing act and also creates a basis for ignoring it. Insufficient communication, a weak managerial structure reveals bad management, the effort to protect one's own situation in a competitive and stressful environment within the restructuring system within the concept of "do the job or leave", the inability to come up with new ideas, low work efficiency consisting of repetitions support mobbing and feeds. The third important reason in mobbing is the problem of cultural adaptation with the increasing immigration, the lack of self-confidence of the employees, the disregard of the merits in the workplace, and the nepotism of the acquaintances and fellow countrymen. All of these prevent the formation of corporate identity, weaken the sense of belonging to the institution, and prevent the formation of a collaborative working culture. The use of changes and innovations in the business world against the employees instead of in favor of them causes a collapsed sociological and administrative structure that harms both the institution, the employees and the upper units to which the institution is affiliated.
It should be essential to prevent mobbing in institutions and to take measures to prevent its emergence. This includes the manager-employee relations, whether the workload is evenly distributed among the employees, how often personnel changes are made in the institution, the number of investigations, lawsuits, whether the employees have the skills and capacity to fulfill their responsibility, to what extent the employees have a say in their work. Risk assessment studies should be carried out to examine the risk of mobbing, and it is necessary to develop protective measures against the possible risk of mobbing. Here, social activities that will increase work motivation, in-service training and lifelong learning programs that will increase the skills and competencies of the employees, an employment contract in which the rights of the employees are guaranteed in labor law. will be. It will also be effective for people who are administrators to come from a psychologically and sociologically equipped management education and to be open to innovations.
/1) Rome wasn't built in a day.
(2)Application Decision No. 2013/8175 of the Constitutional Court (See Annex-1)17
(3) HACER KAHRAMAN APPLICATION (Application Number: 2013/7935) Decision Date: 20/4/2016
(4) Constitutional Court Application No: 2015/7108 Decision
(5)Constitutional Court, APPLICATION OF HÜDAYİ ERCOŞKUN (Application Number: 2013/6235
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