Istanbul Law Review
Employee’s Use of Social Media as a Reason for Termination by EmployerAslı Çalışkan Yıldırım, Ömer Uğur
With the widespread use of the Internet, the effect of workers using social media on the employer’s right to terminate has become more and more controversial. As a matter of fact, in some cases, it is quite difficult to determine the existence of the right of termination and the type of termination. For this reason, this study is an attempt to examine the issue of the employees’ use of social media as a reason for termination by the employer by taking relevant judicial decisions into account. In our study, the concept of social media was first examined in terms of its definition and usage types. After that, the employer’s authority to regulate the employee’s use of social media and its limits has been reviewed. Finally, the employee’s use of social media has been evaluated in detail. In this context, this is an examination into various factors that may affect the employer’s right to terminate and what should be taken into account during the termination process. Moreover, the legitimacy of the employers’ access to employees’ social media use has been discussed.
İşveren Bakımından Fesih Sebebi Olarak İşçinin Sosyal Medya KullanımlarıAslı Çalışkan Yıldırım, Ömer Uğur
İnternet kullanımının yaygınlaşması ile işçilerin sosyal medya kullanımlarının işverenin fesih hakkına etkisi daha fazla gündeme gelmektedir. Nitekim fesih hakkının varlığı ve fesih türünün belirlenmesi bazı hallerde oldukça güçtür. Bu nedenle ilgili yargı kararlarına da yer verilerek, bir fesih sebebi olarak işçilerin sosyal medya kullanımları incelenmeye çalışılmıştır. Çalışmamızda öncelikle sosyal medya kavramı, tanım ve kullanım şekilleri bakımından incelenmiştir. İkinci olarak, işverenin işçinin sosyal medya kullanımlarına ilişkin düzenleme yetkisinin kullanım şekilleri ve sınırlarına yer verilmiştir. Üçüncü ve son kısımda ise işçinin sosyal medya kullanımları işverenin fesih hakkı bakımından ayrıntılı şekilde değerlendirilmiştir. Bu başlık altında işverenin fesih hakkına etkisi olduğu düşünülen ve değerlendirme aşamasında dikkate alınması gereken çeşitli unsurlar irdelenmiştir. Ayrıca işverenin işçinin sosyal medya kullanımlarına erişiminin hukuka uygunluğu tartışılmıştır.
The use of social media has become widespread all over the world, especially with access to the Internet being provided through mobile devices. Likewise, employees also use social media widely, both during and outside the working hours. In our study, it has been examined whether workers using social media during working hours or in a particular type of way constitute a reason for termination for the employer, and if so, which type of termination may apply. The increase in the use of social media by workers has led employers to take various measures. Indeed, the use of social media platforms in the workplace may cause employees to disrupt their duties. Moreover, workers losing focus due to the use of social media platforms can cause dangerous situations in terms of occupational health and safety. In addition, employees using social media (shares, comments, likes, and direct messages etc.) can sometimes put the employer in a difficult position in front of the public, damage the employer’s reputation, and even cause business secrets to be disclosed.
It is possible for employers to limit the use of social media in the workplace in various ways. These regulations may be directly related to the use of the Internet in the workplace or may be in the form of restrictions on certain social media platforms. Furthermore, the employer can make regulations on how social media will be used. For example, it may be prohibited to share images of the whole or part of the workplace, or images of the workers in their workplace clothes. It is also possible for employers to explicitly permit the private use of the Internet at work. If the employer has not made any regulations regarding the use of the Internet for private purposes, as a rule, it can be accepted that the employee cannot use the Internet for private purposes at the workplace and during working hours. In practice, it can be seen that employers want to limit the employees’ use of social media, even outside the workplace. Employers are especially sensitive about the content of the posts made by the employees on social media platforms. As seen in some of the Turkish Supreme Court decisions, many employers claim that they suffer losses because of employees’ posts or the posts by others that the employees liked or reposted, even if these took place outside of the working hours.
Employers do not have unlimited authority when making arrangements regarding the use of social media by employees. In particular, certain rights and freedoms of employees will be taken into account in determining the limits of the employer’s regulatory authority. In accordance with the relevant provisions of the Turkish Constitution, everyone has: (i) “the right to protect and develop his/her spiritual existence;” (ii) “the right to demand respect for his/her private life;” (iii) “the freedom of communication;” and (iv) “the right to express and disseminate his/her thoughts and opinions by speech, in writing or in pictures or through other media, individually or collectively.”
While these freedoms are constitutionally guaranteed, they are not absolute. For example, the employee’s freedom of expression does not allow him/her to make statements about the employer or other employees that would harm their honor and dignity. Likewise, the employees are obliged to consider the legitimate interests of the employer, to keep business secrets, and not to compete with the employer during the continuation of the employment relationship, in accordance with their duty of loyalty. In determining whether the fundamental rights and freedoms of the employee have been violated, the obligations of the employees arising from the employment contract should also be taken into account. Within this framework, a fair balance should be found between, for example, the freedom of expression of the employee and the protection of the honor and reputation of the employer.
The important points to be taken into consideration while evaluating the termination of the employment contract also examined in the study include: whether the employee’s use of social media (i.e., browsing, sharing, liking, commenting, and sending messages) violates the employer’s legitimate interests, the severity of the negative impact of the social media use on the employment relationship, and whether the continuation of the employment relationship can be expected. In this regard, (i) the social network used by the employee, (ii) the audience reached through the social network, (iii) the content of the social media use, (iv) use of information about the employer or the workplace, (v) the position of the employee in the workplace, and (vi) the effects of social media use on the employment relationship should be taken into consideration while evaluating the termination. In the last part of the study, in light of the above-mentioned issues, termination of an employment contract because of the employee’s use of social media are examined, considering the employee’s violation of the duty of work, obedience, and loyalty.