What is Mobbing in the Turkish Legal System?
“Mobbing” is a new concept recognized by the Turkish legal system. Literally, mobbing means bullying of an individual by a group in any context, such as a family, friends, peers, school, workplace, neighborhood, community, or online. When it occurs in the workplace it falls within the scope of the relevant labor legislation. Mobbing as a legal concept is defined by the Turkish Court of Appeals as “a psychological terror appearing as directing someone a hostile and immoral communication directed systematically from one or more persons to another”.
Is it a discrimination or violation of human dignity?
The term “mobbing” is interpreted differenly in various legal systems. The main distinction of interpretation is between the common law and civil law. In common law systems, the judicial decisions about mobbing are based on “discrimination” and “violation of equality”. In civil law systems, mobbing is interpreted as “violation of human dignity” rather than violation of equality. The common law system dignifies the “equality” between the employer and employee or between all employees. It is actually understandable when we take a look at the American history and the prior discrimination cases between the US citizens.
Mobbing is not the same as “bullying”!
Another important point is to differentiate “mobbing” from “ bullying”. They have some common aspects of course, but “bullying” defines physical assault more than psychlogical harassment. Mobbing is more about the psychological terror, which is repeatedly committed by the employers or other employees. In the Turkish system, mobbing is translated as psychological harassment (psikolojik taciz) or moral and emotional harassment.
How can we recognize a “mobbing” act?
The common trait of a mobbing act is that it does not appear out of nowhere; but it is the result of a long standing and systematic act. It is very important not to define every nervous behaviour, fight or discussion as mobbing. Mobbing requires more systematic actions rather than one wrongdoing or misbehaviour. In other words, the victim of mobbing must be harassed systematically.
The most important and significant elements of mobbing are determined by the court decisions and doctrine as follows:
1) Knowingly and intentionally engaging in mobbing,
2) Repeating the behaviour systematically,
3) Continuing same behaviour for a certain period of time (i.e at least for 6 months), and
4) Intending to distracting the employee from his work, i.e by frustrating him.
Another research attributes mobbing to the 3 parameters stated below:
1) Being exposed to negative behaviour systematically (like once in a week),
2) Being exposed to negative behaviour for a certain period of time (at least 6 months) and
3) Power inequality between the harasser and the victim.
How does Turkish legislation define “mobbing” ?
In the Offical Gazette dated 19.03.2011 and numbered 27879, the Prime Ministry issued a circular “Prohibiting the Psychological Harassment (Mobbing) in the Workplaces”. This circular defines mobbing as “…psychological harassment appears like humiliating, underrating, externalizing, injuring the honour and personality, maltreating, frustrating an employee systematically on purpose for a significant period …”.
How do Turkish Courts interpret “mobbing”?
• The decision of Ankara 8th Labor Court dated 2006 is the first decision of Turkish Courts about mobbing. In this case, the employee was psychologically harrassed by his superior after the change of management at the workplace. The employee was exposed to nervous behaviour, oral and written pressure and unjust reprimand by his superior. The same superior requested five defense statements within 1,5 years from the employee due to his acts. The court of first instance decided that the employee was exposed to psychological harassment/mobbing and the employer was sentenced to pay 1,000 TRY for damages for pain and suffering. This decision was approved by the 9th Chamber of Court of Appeals. This decision established the precedent in Turkish Law on mobbing and in the decision mobbing was defined as “every kind of systematic maltreatment, threat, violence, humiliation to an employee by his employers, seniors, colleagues or juniors”.
• In a decision of the Court of Appeals Assembly of Civil Chambers numbered 2012/9-1925 E., 2013/1407 K. and dated 25.09.2013, changing the workplace of a married, 56 years old lady lawyer for 30 times in a 9 month period after having worked for 14 years in the same workplace, was interpreted as “mobbing” and the court defined mobbing:
“…as it is seen, for accepting a behaviour as psychological harassment, one employee must be targeted, the behaviour must be continuing and this situation must be systematic…”.
• 9th Chamber of the Court of Appeals underlined the continuation factor of the actions in its decision numbered 2008/37500 E. , 2010/31544 K. and dated 04.11.2010:
“ … the claimant is in psychological depression because the effects and consequences of the harassment are continuing and despite there is no negative evaluation about his performance, the performance grade was lowered after these actions…”.
In the Turkish doctrine, it is generally stated that the duration of mobbing acts must continue between 3 months to 3 years. In the comperative law, a minimum of a 6 months period of the acts are required for defining a case as “mobbing”. However, determining a concrete period is not possible and every mobbing case must be evaluated individually. The effects on the victim and the duration are determinant.
Mobbing cases find their spot on the news in the Turkish media. Lately a male associate professor in Istanbul Yıldız Technical University, brought a suit against six of his female colleagues with the claim of mobbing. He claims that he has been exposed to “psychological harassment, defamation and attrition for years” and that there is “woman staffing” in the workplace, so that the male teaching assistants are exposed to get distracted. Although there are many allegations of mobbing and cases filed in Turkish courts, in order for a mobbing case to be accepted the preconditions explained above must be present.
Mobbing is still relatively a new concept to the Turkish courts, but the courts seem to be on a correct track to establish certain pre-conditions and principles with regard to mobbing cases. However, it is worth to note that the courts generally scrutinize the mobbing claims very carefully. When it comes to compensation they tend to award compensation only in specific cases and limit the compensation at rather nominal amounts.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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