MOBBING LAWSUIT
MOBBING LAWSUIT
In this article, we will try to provide our valued readers with information regarding mobbing lawsuits.
“Mobbing” is a type of psychological violence that can be briefly defined as psychologically intimidating an individual employee. In the Turkish Language Association (TDK) and some Court of Cassation rulings, the term “bezdiri” is used instead of “mobbing.” In essence, “mobbing” is psychological violence systematically applied to an employee through means such as humiliation, harassment, and exclusion, with the intent to intimidate, wear down, and passivize the individual.
The employer has an obligation to protect the mental and physical integrity of the employee. Therefore, if an employee believes they are being subjected to “mobbing,” they should immediately report this situation to the employer, and the employer must take the necessary measures. If the necessary measures are not taken, the employee who is being subjected to “mobbing” may terminate their employment contract for just cause.
The rights of an employee subjected to “mobbing” are as follows:
Terminating the employment contract for just cause,
The right to demand non-pecuniary damages,
The right to demand severance pay,
In the event that it constitutes a crime, the right to demand compensation directly from the manager who applied the “mobbing,”
The right to demand overtime pay,
The right to demand all labor receivables.
An employee subjected to “mobbing” can file a mobbing lawsuit against the employer after resigning for this reason. In this lawsuit, the employee can claim pecuniary and non-pecuniary damages for the psychological violence they suffered throughout the process.
In the past, to file a “mobbing lawsuit,” one had to submit strong evidence to the court proving the “mobbing”; if there was no evidence to prove it, witnesses had to be presented. However, recent Court of Cassation rulings state that definitive evidence is not required to prove “mobbing,” that presenting evidence that raises suspicion is sufficient, and that the burden of proof regarding the absence of mobbing lies with the employer. Furthermore, according to recent rulings, the presence of “mobbing” does not require a severe violation of personal rights; even minor attacks will constitute “mobbing.” With these rulings by the Court of Cassation, the employee has been relieved of the pressure to find evidence and witnesses, and the responsibility has now been shifted to the employer.
A “mobbing lawsuit” can also be filed while continuing to work at the workplace where the mobbing occurs. However, in this case, if the employee cannot provide any evidence or witnesses and has not resigned, there is a high probability that the case will be dismissed as it could be considered an abuse of rights.
A “mobbing lawsuit” must be filed within 2 years from the date the damage and the responsible party are learned, and in any case, within 10 years from the date the act was committed.
A “mobbing lawsuit” can be filed at the Labor Court where the employee or the employer resides or where the relevant workplace is located.
Additionally, if the “mobbing” actions of the employer or manager constitute a crime, criminal complaints can be filed, and these individuals can be punished according to the Turkish Penal Code (TCK). There is no specific crime defined as “mobbing crime” in the TCK, but this does not mean that these “mobbing” actions do not constitute a crime. It is observed that crimes such as “intentional injury, sexual assault, sexual harassment, threats, violation of the freedom of work and labor, hatred and discrimination, obstruction of the exercise of union rights, insults, plunder…” occur while “mobbing” is being applied. Since criminal liability is personal, this case will be filed only against the person who performed the act. For example, if a manager commits an act that constitutes a crime while applying “mobbing,” the lawsuit is filed only against the manager for this act, and the manager is punished. While the employer has liability in the process of pecuniary and non-pecuniary damages, they will not be liable for the manager's actions during the criminal trial process. For this reason, a person who is subjected to an act constituting a crime while being mobbed, or who witnesses such an act, must file a criminal complaint so that those who engage in “mobbing” can be punished.
Attorney Gizem GONCE & Trainee Attorney İlayda KORUDAĞ