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Whistleblowing in Turkish Labor Law
Whistleblowing in Labor Law is used in Anglo-Saxon Law as to “appeal to public opinion against common fault“. In other words, whistleblowing refers to the disclosure of misconduct, illegality, or negligence misconduct in the workplace by the employee.
Although the term whistleblowing does not yet have an exact equivalent in Turkish, the concept comprises the English words whistle and blow. To summarize, whistleblowing reveals negligence, misconduct, and unlawful acts in the workplace.
The term whistleblowing was first regulated in the UK. The 1998 PIDA (The Public Interest Disclosure Act) introduced provisions related to whistleblowing. Accordingly, if there are activities in a workplace that are contrary to tax, health, safety, or environmental protection legislation, the worker who learns that these are being concealed must first report the situation to their superiors, then to the state authorities and, if necessary, to the media.
However, to ensure the worker’s protection, the worker must be in good faith and not seeking profit. Only under these conditions can the whistleblower not be dismissed or discriminated against. If dismissed or discriminated against, they are entitled to unlimited compensation.
In addition, the concept of “whistleblowing” is addressed in Preamble No. 20 of the relevant directive, which came to the agenda with the “On the Protection of Undisclosed Know-How and Business Information (trade secrets) Against Their Unlawful Acquisition, Use and Disclosure” announced by the European Parliament and the Council on June 8, 2016. The definitions of whistleblowing reveal three elements of this concept.
- The first element is that the whistleblower must be a person working in or with the workplace concerned,
- The second element is that the subject matter is an illegitimate transaction or action that is contrary to legal legislation, morality, and ethics,
- The third and final element is the party, person, or institution to which the whistleblower discloses the violation of the rules. In other words, the employee does not directly apply to the employer or the workplace about the illegalities in the workplace but to an institution or a third party that can prevent these violations.
The Heinisch case, in which the European Court of Human Rights concretized the concept of freedom of expression and whistleblowing against the employer, is also important. In the precedent-setting case, the employee claimed that unfavorable conditions at the workplace, such as heavy workload, affected his health condition, that other unfavorable conditions in the company prevented him from working, and that the procedures in the company were not fully executed. After Heinisch received a non-prosecution decision from the prosecutor’s office, the employer, unaware of the prosecutor’s complaint, terminated Heinisch’s employment contract due to sickness-related absenteeism with a notice period.
The European Court of Human Rights (ECHR) examined the issue by focusing directly on the employee’s disclosure and denunciation of unlawful situations and negativities in the workplace. In this context, the ECHR stated that the local and higher courts did not violate the right to a fair trial, evaluated the applicant’s actions within the framework of freedom of expression, and ruled that the decision to reject the termination and reinstatement request was violated.
On the other hand, according to the OECD data, the countries with whistleblowing regulations in their domestic law are Australia, Belgium, Canada, Hungary, Japan, Korea, Netherlands, New Zealand, Britain, the United States, Jamaica, India, and Ireland.
The most important point in whistleblowing is that both the whistleblowing employee, the business where the information is whistled, and the public are affected by the information. To understand whether there is whistleblowing, the information must be real and affect society.
For example, if babies are shown dead in a hospital and given to other families, or a business willingly produces a carcinogenic product, no individual’s interest is protected. The only interest to be protected would be the interest of society. For this reason, whistleblowing, expressed as an act of civic virtue, differs from definitions such as threats, snitching, and whistleblowing.
The intersection of whistleblowing and Labor Law is the employee’s duty of loyalty. The effect of whistleblowing on the employee’s duty of loyalty is the main focus of the discussions on the subject. In the doctrine, it is accepted that the whistleblowing of an employee who owes a duty of loyalty to the employer under a service contract does not constitute a breach of this duty, and therefore, the whistleblower is protected.
Whistleblowing and Confidentiality Obligation of Employees under Labor Law No. 4857 and Other Laws
The only specific regulation in Turkey that can be considered to be related to whistleblowing is the “Law on the Amendment of the Law on Occupational Health and Safety and Certain Laws and Decree Laws“, and the regulation added to the Law on Occupational Health and Safety, which stipulates the obligation of occupational health and safety experts to notify the employer and then the authorized unit of the ministry in case the employer fails to comply with the safety measures and the protection of the occupational safety expert due to this notification.
On the other hand, Article 396 of the Turkish Code of Obligations (TCO) stipulates that the duty of care and loyalty requires the employee to perform the work undertaken diligently and observe the employer’s legitimate interests. As an integral part of the duty of loyalty, the employee must inform their employer of all situations that harm or are likely to harm the employer’s financial well-being or reputation.
However, no explicit written regulation obliges employees to report misconduct or unlawful behavior. In the doctrine, whether the employee violates their duty of loyalty in case of whistleblowing and whether they are obliged to make this notification is controversial. The general opinion is that, under certain conditions and per the principle of proportionality, whistleblowing by the employee will not constitute a breach of the duty of loyalty.
On the other hand, whistleblowing does not deal with unfounded accusations contrary to the rule of honesty. Since it is mainly about real denunciations, the provision mentioned in Article 25/II-b of the Labor Law on “making unfounded denunciations and accusations against the employer that are offensive to honor and dignity” is irrelevant here. However, the worker must not make unfounded and untrue accusations.
It should not be forgotten that the person who fails to report a crime to the competent authorities within the scope of the crime of failure to report a crime under Article 278 of the Turkish Penal Code (TPC) is punished. Therefore, if an action constitutes a criminal offense, it is a legal obligation to report this action to the relevant authorities. The fact that the person is aware of the criminal act as a party to an employment contract or otherwise does not affect this obligation.
However, Turkish Labor Law does not yet have adequate regulations on whistleblowing. However, Article 13/A of the Labor Law states that an employee who initiates or participates in a legal process against the employer for their rights (Article 17/II-b of the Labor Law on job security), as well as the making of “unfounded” allegations and denunciations against the employer, is a just cause of termination for the employer.
For this reason, the employee who learns about one of the reasons above that may be subject to whistleblowing will be protected if they make “substantiated” notifications about the workplace.
Therefore, according to the Labor Law, it is possible to terminate an employee’s employment contract acting in good faith and not for profit by following the legal process (i.e., first the manager or employer, then the “competent authority“). If no results are obtained from the higher authorities or perceived as futile, useless to the media may be considered.
Nevertheless, the legislation falls short of protecting the worker dismissed for reporting, even in good faith, or at risk of discriminatory or hostile treatment due to reporting. In this case, the responsibility lies equally with the trade unions and the courts.
Whistleblowing by Employees within the Scope of Duty of Care and Loyalty and its Effect on Termination
Article 396 of the Turkish Code of Obligations states:
“The employee is obliged to perform the assigned work diligently and act loyally to protect the legitimate interests of the employer. The employee must use the employer’s machines, equipment, technical systems, facilities, and vehicles properly and is obliged to take care of the materials provided for performing the work. The employee may not offer services to a third party for a fee in violation of their duty of loyalty while the employment relationship continues and, particularly, cannot compete with their employer. The employee cannot use for their benefit or disclose to others the information learned during the course of employment, especially production and business secrets, for the duration of the employment relationship. The employee is obliged to keep secrets, to the extent necessary to protect the employer’s legitimate interests, even after the employment relationship has ended.“
Subparagraph c of Article 18 of the Labor Law indicates that applying to administrative or judicial authorities against the employer to pursue the employee’s rights or fulfill their obligations arising from the legislation or the contract or participation in the process initiated in this regard shall not be considered a valid reason for the termination of the employment contract.
In the debt relationship between the employee and the employer arising from the employment contract, the employee is not only obliged to fulfill the debt while fulfilling the work performance. As in the debt relationship, the debts arising from the employment contract must be fulfilled within the framework of a mutual trust relationship.
These are sometimes behavioral obligations that arise from the law and sometimes from the rule of honesty in Article 2 of the Civil Code. These are behavioral obligations outside the work performance and are intended to protect the employer’s interests within the limits of the rule of honesty and to avoid behaviors that harm the employer. The duty of loyalty also refers to an ancillary obligation inherent in the employment relationship.
Regardless of how the classifications are made in the doctrine, the duty of loyalty is avoiding behaviors that may harm the employer or the workplace, refraining from behaviors that do not comply with the rule of honesty and the obligation of loyalty, staying away from behaviors that may undermine the fame and reputation of the employer, informing the employer about the problems, dangers, and violations he sees in the workplace, and fulfilling the work they have undertaken as required, not to compete with their employer during work or (if agreed by contract) after work, and not to disclose to third parties any commercial information related to the work or the workplace that they learn during the employment relationship.
Another condition for protecting the whistleblown information and the worker is that the worker must have followed a certain procedure. In this case, the worker must first report the information they have obtained to their senior supervisors and, if that fails, to the competent public authorities and then to the public and the media.
However, without a similar special justification, it will not be possible to protect the worker if the worker directly applies to the media regarding the information they have. In addition to this condition, for the worker to be protected from whistleblowing, they must have acted in good faith and for rational/reasonable reasons.
In other words, the whistleblower must not have acted with a personal purpose and must not intend to gain profit when they convey the information they have obtained about their work to the public authorities through the whistleblowing method.
Suppose the employee whistleblows information due to a crime committed in the workplace to avoid punishment, which also concerns them, and to prevent other people from being harmed. In that case, it is accepted that they have an interest worthy of protection. In other words, to protect the worker here, it can be said that the worker must have acted with the public interest in mind.
The aspect of whistleblowing that concerns Labor Law is the determination of the points and scope of the protection of the employee’s duty of loyalty during the performance of their duty of work arising from the employment contract. Accordingly, it is seen that under certain conditions, the employee’s disclosures to the employer/organization will not constitute a breach of the duty of loyalty and can be included within the scope of whistleblowing.
The justification for this conclusion is that the employer does not have an interest worth protecting in continuing illegal or unethical facts or that disclosure protects a higher legal value. Therefore, in terms of Turkish Labor Law, the termination made by the employer against the employee who, acting in good faith and not for profit and following a reasonable procedure, whistleblows genuine information is considered unfair/invalid termination.
Turkish legislation is insufficient in protecting the employee who acts in good faith but whose whistleblowing is unfounded and the employee who is not subjected to termination for whistleblowing but is subjected to discriminatory or hostile treatment.
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References & Sources
- Alp Mustafa, Employee’s Disclosure of Breaches of Law in the Light of the European Union’s Directive 2019/1937 on Whistleblowing, Journal of Dokuz Eylul University Faculty of Law, Volume: 23, Issue: 1, 2021, pp. 1-31.
- Aydin Ufuk, Employee Whistleblowing in Terms of Labor Law, Anadolu University Social Sciences Journal, Eskisehir 2002, p. 79-100.
- Dilara Yanginci Sevval Tekin, Whistleblowing in Turkish Labor Law, Whistleblowing of Workers in Terms of Labor Law, Anadolu University Journal of Social Sciences, Istanbul, 2022.
- Can TUNCAY, “Worker’s Obligation of Loyalty”, Prof. Dr. 80th Birthday Gift to Hayri Domanic, Vol. 2, Istanbul, 2001, p. 1046-1047; Kudret ERTAS, Worker’s Loyalty Debt in Turkish Law, Ankara, 1982, p. 1-5; Tankut CENTEL, Labor Law, V. 1, Individual Labor Law, Istanbul, 1992, p. 136; Sukran ERTURK, Fundamental Rights in Business Relationships, Ankara, 2002, p. 113-114.
- “DIRECTIVE (EU) 2016/943 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL”, <https://eur-lex.europa.eu/eli/dir/2016/943/oj>
- “PIDA 1998”, <https://www.legislation.gov.uk/ukpga/1998/23/contents>
- “DIRECTIVE (EU) 2016/943 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL, <https://eur-lex.europa.eu/eli/dir/2016/943/oj>
- Alp Mustafa, Whistleblowing and Freedom of Expression in Employment Relations in the Light of the Heinisch/Germany Decision of the European Court of Human Rights, Dokuz Eylul University Faculty of Law Journal Volume: 15, Ozel S., 2013, p. 385-422 (Published Year: 2014).