Employment & Labour

IS WHISTLEBLOWING CONSIDERED FREEDOM OF THOUGHT AND EXPRESSION OR IS IT BEHAVIOR AGAINST THE EMPLOYEE’S DUTY OF LOYALTY IN TURKISH LABOR LAW

The concepts of “whistleblowing” and “whistleblowerprotect”, which have come to the fore recently with the famous disclosures that have appeared widely in the press and also with such disclosures being the movie subjects, are gaining more and more value day by day. In case of whistleblowing, the employee’s confrontation with the duty of loyalty to his/her employer forces us to discuss which right is superior to the other. In this article, we will try to briefly examine the concept of “whistleblowing”, which is expected to be included in our legislation in the near future, and its effect on the business relationship.

Whistleblowing is generally defined as the reporting of negative situations and faulty transactions such as corruption and illegal practise in the workplace by employees working in private and public institutions, to the authorized bodies within the workplace, public institutions or third parties by complaint or denunciation even by a statement to the press. In this direction, the employee who performs the whistleblowing action is called “whistleblower”, and the protection of such employee is called “whistleblowerprotection”. We see that the concept of “whistleblowing” is called “disclosure”, “sending a message secretly”, or “problem reporting” in the doctrine. In our article, we will use the concepts of ” whistleblower “, ” whistleblowing ” and ” whistleblowerprotect”.

While illegal acts, which may be the subject of whistleblowing by the employees, may be actions that constitute a crime, such as corruption, bribery, it may also be violations of the occupational health and safety rules and social security law, which can be considered relatively slight illegalities. The whistleblower reports the negativity he/she detects in the organization he/she is in to other persons and/or organizations within and/or outside the organization in order not to harm the individuals and the organization. However, there is a possibility that such disclosure may be considered as revealing confidential information of the employer or whistleblowing to the duty of “loyalty”, and this necessitates drawing a line regarding when the whistleblower will benefit from legal protection. In our opinion, for a lawful disclosure, the whistleblower should prioritize the interests of the organization, individuals and the public rather than her own personal interests, and of course, the disclosed information must be accurate. On the other hand, he/she should not act with personal hostility in whistleblowing, in other words, he/she should not have a personal agenda. However, in this case, it should be considered that there is a legal transaction, and the whistleblower should be protected within the framework of both the special laws to be regulated and the principle of good faith.

On the other hand, the person who does not notify the competent authorities of a crime committed concerning not reporting the crime regulated within Article 278 of the Turkish Penal Code is punished. Therefore, in the event that such act constitutes a crime, it can be said that it is a legal obligation to report such act to the relevant authorities.

Pursuant to Article 396 titled “Duty of Care”, which is regulated in the Turkish Code of Obligations, is stated that the employee has to carry out the work he undertakes diligently and to act faithfully in protecting the employer’s rightful interests and should not use or disclose to others information such as production and business secrets, which he learned during his job, for his own benefit during the continuation of the service relationship. At this point, it is seen that the employee’s confidentiality obligation after the end of the service relationship is “limited to the extent necessary for the protection of the employer’s rightful interests.” Therefore, in the event that the employee discloses a negativity that she has learned, been exposed to or detected on an occasion within the organization, it should not be mentioned that the Employer has a rightful interest. As a matter of fact, as emphasized in the case law of the Court of Cassation, the duty of loyalty imposes on the parties of the contract the obligation not to harm the other party’s person, property and other legally protected assets in the performance of the debts arising from the contractual relationship and also the duty of loyalty imposes the obligation to refrain from any behaviour that would jeopardize the purpose pursued by the contract outside the scope of the contractual relationship, especially that would undermine mutual trust. However, in determining whether the employee violated the employment contract, not only the primary performance obligations; Side performance obligations arising from the law or the rule of good faith should also be considered. Therefore, it will not be possible to mention that the employee has acted against the rule of good faith and fair dealing with the act of whistleblowing and the public interest will be prioritized.

Although there are no regulations specifically introduced concerning the protection of the whistleblower in our legislation yet, there are some legal regulations that can be considered relatively related to the subject. The most prominent of these is Article 3/c of the 18th article of the Labour Law titled “Basing the termination on a valid reason”. In the aforementioned legal regulation, it is stated that the cases where the employee “applies to the administrative or judicial authorities against the employer in order to follow up his rights arising from the legislation or the contract or fulfil his obligations or participate in the process initiated in this regard” will not constitute a valid reason concerning the employee’s termination of employment contract. Although, with this article, it can be said that termination of employment contract is protected in the event that the whistleblower applies to judicial or administrative authorities or is involved in the processes to be initiated in this regard. It cannot be said that the employment contract is protected in the event that the whistleblower applies to institutions within the organization, third parties, perhaps media organizations that cannot be accepted as judicial or administrative authorities.

Another legal regulation is in the second paragraph of the 8th article of the Occupational Health and Safety Law No. 6331. Pursuant to this regulation, the Occupational Physician and Occupational Safety Specialist should notify the employer of deficiencies and malfunctions, precautions and recommendations regarding occupational health and safety in writing, in case the employer does not take the necessary precautions even though the reported deficiencies and malfunctions require an emergency stop or there are environments that may cause fire, explosion, collapse, chemical leakage and similar emergency/life-threatening or occupational disease. It has been regulated that such situation should be reported by the Workplace Physician or Occupational Safety Specialist to the authorized unit of the Ministry, to the authorized union representative, if any, or to the employee representative, if not. In the same article, it is regulated that the employment contract of the Occupational Physician or Occupational Safety Specialist cannot be terminated due to the aforementioned notification and that his rights cannot be lost in any way. Otherwise, compensation will be awarded to the employer, not less than the one-year contract fee. Although it can be said that such regulation is a complete whistleblower protection regulation, the fact that only the Occupational Physician and Occupational Safety Specialists are within the scope indicates that a comprehensive legal regulation is needed in terms of protecting the whistleblower.

In conclusion the whistleblower essentially announces the negativity in the organization he is in to the relevant institutions and organizations, and when necessary, confronts the entire organization, the managers and perhaps other employees, and takes the risk of experiencing various negativities during and after his stay in the organization. Even in this case, it is possible for the “whistleblower employee” to be excluded from the employment contract or to be exposed to systematic pressure and discriminatory practices, which can be considered as mobbing, and perhaps to exclusion, even in events that may be relatively crowd-pleasing, it is possible that the whistleblower and her/his relatives will be stigmatized by a part of the society. For such reasons, in order to support the corporate values where transparent and ethical values are at the forefront, we expect that the regulations concerning the “whistleblower employee” in order to benefit from legal guarantees in the presence of certain conditions will be included in our legislation in the near future.

 

Ayça KORTEL

Partner- Attorney at Law

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