• Employers¿ Competence of Email Supervision and Right of Termination
  • November 26, 2015
  • Law Firm: Erdem Erdem Law Office - Istanbul Office
  • Employers must provide convenient working places and conditions for their employees by taking advantage of many possibilities. For this purpose, employers provide personal computers and e-mail addresses for their employees; however, these personal computers and e-mails may be supervised by the employers. As a result of these supervisions, if an employee’s action breaches the commitment to perform properly or subordinately towards its employer is determined, the employer has the right to terminate the employment agreement for just cause. This article focuses on employers’ competence of supervision over e-mails and the right of immediate termination for just cause as a result of their right to govern.

    Employment Agreements and Subordinancy

    Pursuant to the Article 8/1 of Labor Law numbered 4857 (“Law””), an “employment agreement is an agreement whereby one party (the employee) undertakes to perform work in subordination to the other party (the employer) who undertakes to pay him remuneration.” As is clear from this definition, employment agreements are formed by three subjects, which are performance, remuneration and subordinancy. The main difference between employment agreements and remaining agreements is subordinancy. Within this scope, the employee is bound by the orders and instructions of its employer, and is supervised by him[1]. Thus, the employer has the right to govern and control, and the employee has the obligation to adhere to the employer’s orders and instructions.

    Employer’s Right to Govern

    The right to govern allows the employee to give instructions in accordance with laws, collective labor agreements, and employment agreements to regulate the work and the behavior of employees in the workplace[2].

    Generally, employment agreements regulate work roughly. Non-regulated work is filled within the scope of employer’s right to govern. Nevertheless, employers should use this right justly by treating employees who are equal, equitably. Hence, the duties of employees must be clearly defined, and they must work within the scope of these definitions. Furthermore, “personnel regulations” or “workplace instructions” that are formed by the employer, and which include the working place rules, must be disclosed to the employees.

    As an example to these regulations, some companies prohibit access to various internet addresses so that the employees do not ‘surf’ in social media during working hours. This prohibition is a reflection of the employer’s right to govern; therefore, it is legal. Likewise, employers may prohibit making personal phone calls, unless it is an emergency, or certainly necessary for work.

    Employer’s Right to Supervise

    As a natural result of the right to govern, employers have the right to supervise their employees to determine whether their orders and instructions are being followed. Supervision is necessary to provide the layout of the working place. Employers may use different methods for supervision, such as examination of the files, or performance tests. Reviews of the files are made through computers and e-mails since all communications are realized via the internet. Pursuant to the principle of good faith, employers must inform their employees prior to these kinds of reviews, and the supervision must be made openly. However, in accordance with the decisions of the Court of Cassation, employers are competent to utilize their right to supervise at will.

    E-mail Supervision

    In today’s world all types of communications are realized in virtual platforms. Therefore, employers must provide computers to their employees as a result of their obligation to provide convenient working conditions. Generally, companies create personal e-mail address accounts to whom they provide a computer. Naturally, employers may require their employers not to use these computers, e-mails or passwords apart from working purposes, or to abstain from behaviors that may harm the employer. Accordingly, despite these computers and e-mails that are used by employees, they belong to the employer, and are provided for the realization of work as defined in the employment agreements, and are not to be used for storing personal data; therefore, they form a part of the working organization.

    Pursuant to decision numbered 2009/447 E of the 22th Civil Chamber of the Court of Cassation (“Decision Numbered 2009/447”)[3], it is clearly stipulated that “the employer has the right to supervise the computers at any time, as well as the e-mail accounts, and incoming emails that belong to him.” In the case that is the subject of this decision, even though the Claimant alleged that the correspondence is related to private life and must legally be protected, the Court of Cassation did not accept this argument, finding that the relevant correspondences had been realized by the computer and email accounts that had been provided to the employee to perform his work. Through this decision, one may conclude that the data stored in the computers and email accounts of the employer are not protected as personal data under Constitutional Law.

    Research conducted by the American Management Association exhibited that 77.7% of the employers save and supervise phone calls, e-mails, internet access, and computer files of their employees in the USA. Such monitoring occurs in Turkey, as well. Therefore, employees who work in private sector must be aware that these computers and e-mail accounts are under the control of their employers and may be monitored at any time.

    Employer’s Right of Termination

    An employer has the right of immediate termination, which is also referred to as summary termination, in the event that the reasons, as stipulated under Article 25 of the Law, exist. These reasons are categorized under the topics of health, immoral, dishonorable, malicious conduct, or other similar behavior, as well as force majeure. Within the scope of immoral, dishonorable, or malicious conduct topics, sub-Article I, which stipulates the breach of the commitment to perform properly, sub-Article E, which stipulates the breach of the commitment to perform subordinately, and sub-Article B, which governs speech or actions that constitute an offence against the honor or dignity of the employer, constitutes just causes for the employer.

    Therefore, in the event that the employer obtains proof of one of the above-mentioned reasons as a result of e-mail and computer monitoring, he may immediately terminate the employment agreement[4]. However, the employer may not exercise this right after six working days of having become aware of these facts, and in any event, after one year following the commission of the act has elapsed. The “one year” statutory limitation shall not be applicable if the employee has extracted material gains from the act concerned. In the event that the employer terminates the agreement by just cause, the employee shall not be entitled to severance and notice pay. He shall not be entitled to initiate a reemployment lawsuit, as well.

    Indeed, in the matter that is subject to Decision Numbered 2009/447 E., the employer made note of several e-mails contain revilements against the employer, and which e-mails denigrate the company. The Court found these emails sufficient to terminate the agreement for just cause, and the employee was, therefore, not entitled to severance and notice pay.

    To avoid the results of these sudden supervisions, firstly the employees should not use company computers and e-mails for their personal purposes. As well, it may be legally useful that employers regulate the use of the computers, internet and telephone calls, and disclose them to their employees; unfortunately, these types of regulations are uncommon in Turkey.

    Conclusion

    Within the scope of employment agreements, employers have the right to govern and supervise. Employers are competent to monitor computer and e-mail accounts as provided by them to their employees for the performance of the work and instructions that were provided under the right to govern by the employer. Even though the principle of good faith is such that the employer would provide notice of monitoring, pursuant to Decision Numbered 2009/447 E., employers may use this right at will. In the event the employer determines a reason regulated under Article 25 of the Law as a result of its supervision, it may terminate the employment agreement with immediate effect for just cause. In this case, the employee shall not be entitled to severance and notice pay; therefore, employees must be very mindful when they use such computers and e-mail accounts and to avoid any actions that may be deemed as a breach of the commitment to perform properly and subordinately.

    [1] Prof. Dr. Nuri Çelik, Is Hukuku Dersleri, Yenilenmis 25. Baski, Beta Yayinlari, Istanbul 2013, s. 86.

    [2] Prof Dr. Sarper Süzek, Is Hukuku, 3. Basi, Beta Yayinlari, Istanbul 2006, s. 61.

    [3] Please see the decision of the 9th Chambers of the Court of Cassation, dated 13.12.2010, numbered 2009/447 E, 2010/37516K. in the relevant matter.

    [4] Decisions of the 9th Chambers of the Court of Cassation, dated 4.5.2009, numbered 2008/36305 E., 2009/12393 K.; dated 17.03.2008, numbered 2007/27583 E., 2008/5294 K. may be given as example in the relevant matter.