CAN WHATSAPP CONVERSATIONS CAUSE TERMINATION?

Of course, communication, which is one of the uncontrollable points of the technology age, cannot be expected not to be reflected in court decisions. So this is the situation; Could the information sharing and chat made through the what’s up group established by the workers among themselves be the reason for the termination of the employment contract?
The recent decision of the Supreme Court is given below.
Turkish Supreme Court

9. Law Office
    
   Principle: 2018/10718
   Decision: 2019/559
   Decision Date: 10.01.2019 ACTION ON LABOR RECEIVABLES – WORKERS
    
   ARE NOT PROHIBITED TO ESTABLISH A GROUP AND BE IN COMMUNICATION UNLESS IT DOESN’T STRUGGLE THE WORKFLOW AND THE WORK DOESN’T AFFECT THEIR JURISDICTION – JURISDICTION SUPERVISION
    
   :Whatsapp system is a system that performs communication via telephone and internet environment. Here, communication is carried out within the group by establishing groups as the person communicates with individuals. However, this system is in a self-protected and closed position to third parties. Therefore, it is not forbidden for workers to form a group and communicate there, as long as it does not disrupt the work flow and affect the work. In this context, it is essential that the communications of the workers are also protected as personal data. In the concrete dispute, since the WhatsApp conversations are confidential personal data, the termination of the employment contract based on these correspondences, which cannot be understood solely how they were obtained, is unfair, and the rejection of the severance pay and notice indemnity demands is wrong.
    
   4857 SK m. 25)
    
   Litigation: The decision made as a result of the lawsuit between the parties was requested by the plaintiff’s attorney to be examined on appeal, and it was understood that the appeal requests were in time. After listening to the report prepared by the Investigation Judge for the case file, the file was examined, the necessity was discussed and considered:
    
   JUDICIARY DECISION
    
   A) Summary of the claimant’s request:
    
   The plaintiff’s attorney stated that the plaintiff was called on 13.6.2014 and that the messages they gave to each other about the use of WhatsApp among their friends were detected from a friend’s phone, there were conversations against the workplace in the messages, therefore it was in favor of his resignation, and if he did not resign, he could be sued for moral damages by the company. that the plaintiff was asked to sign a letter of resignation, that the plaintiff was dismissed upon his refusal, that WhatsApp is a private messaging system and is related to the private life of individuals, that it is an interference to the privacy of private life, that is, a crime, that the employer receives these messages under pressure from his friend’s phone, that the private life conversations are illegally obtained. and cannot be used as evidence,Claiming that the plaintiff did not say anything in the form of insult that could lead to his dismissal, the plaintiff’s employment was terminated unjustly, and some of the labor receivables were not paid, and demanded that they would receive severance pay, notice indemnity and annual leave wages.
    
   B) Summary of the defendant’s response:
    
   The defendant’s attorney requested the dismissal of the case, arguing that the defendant’s employment contract was rightfully terminated by the defendant, that the plaintiff made statements against the defendant company in the messaging group he established with his colleagues, and that the claims and demands were unfounded.
    
   C) Summary of the decision of the Local Court:
    
   According to the collected evidence and the expert report, the Court’s decision numbered 2014/472 was overturned by the decision of the 9th Civil Chamber of the Court of Cassation dated 30/11/2017, according to the service schedule, detailed registration information, termination report, bank account information in the file. As a result of the evaluation of the evidence according to the transcript, the defense letter, the messaging records on which the termination was based, the payrolls, the witness statements, the expert report, the reversal notice, the documents submitted by the defendant’s attorney after the reversal and the scope of the entire file; the plaintiff worked for the defendant employer between 01.06.2012-13.06.2014 for a monthly bare gross wage of 1,075.00 TL,
    
   D) Appeal:
    
   During the decision period, the plaintiff’s attorney appealed.
    
   E) Justification:
    
   1- According to the articles in the file, the collected evidence and the legally compelling reasons on which the decision is based, the plaintiff’s appeals, which are outside the scope of the following paragraphs, are not valid.
    
   2- In terms of severance pay and notice pay claims;
    
   Whatsapp system is a system that performs communication via telephone and internet environment. Here, communication is carried out within the group by establishing groups as the person communicates with individuals. However, this system is in a self-protected and closed position to third parties. Therefore, it is not forbidden for workers to form a group and communicate there, as long as it does not disrupt the work flow and affect the work. In this context, it is essential that the communications of the workers are also protected as personal data.
    
   In the concrete dispute, since the WhatsApp conversations are confidential personal data, the termination of the employment contract based on these correspondences, which cannot be understood solely how they were obtained, is unfair, and the rejection of the severance pay and notice indemnity demands is wrong.
    
   F)Result:
    
   It was unanimously resolved on 10/01/2019 that the appealed decision be OVERFINED for the reasons written above, and that the appeal fee paid in advance be returned to the concerned person upon request. (¤¤)