LEGAL REMEDIES AGAINST MOBBING

I. INTRODUCTION

In the first part of our series on mobbing, we discussed the definition and elements of mobbing, while in the second part, we focused on the difficulties encountered in proving mobbing and the available means of proof. In this final part of our series, we will discuss the legal remedies available to victims of mobbing and the types of damages that can be claimed.

II. LEGAL REMEDIES FOR PUBLIC EMPLOYEES

As previously mentioned, mobbing against public employees covered by the Law No. 657 on Public Servants (“Law No. 657”) can take various forms, including verbal or psychological attacks, as well as disciplinary investigations, transfers, or temporary assignments solely for the purpose of intimidation.

Law No. 657 and the Code of Administrative Procedure No. 2577 ("CAP") enumerate the types of lawsuits that can be filed against the administration; however, before examining the available remedies, the status of the mobbing victim in administrative law will be analyzed.

a. Who is a Public Employee?

Article 3, paragraphs A, B, and C of Law No. 657 indicate that public employees are individuals employed within the hierarchy of relevant institutions. Moreover, Article 1 of Law No. 657 stipulates that persons subject to the legislation specified therein shall also be considered public employees; however, subparagraph D of Article 4 provides that individuals employed as workers do not have the status of public employees, and the provisions of the Labor Law No. 4857 ("Labor Law") shall apply to such individuals.

b. Complaint Procedures Within the Administrative Judiciary Law

1. Complaint Procedure

Public employees have the right to file complaints against administrative actions taken against them. Complaints are made to a superior officer, bypassing the officers against whom the complaint is made. The superior officer then forwards the complaint to the first disciplinary officer. If deemed necessary, the disciplinary officer conducts the relevant judicial or administrative investigation as a result of the complaint. In any case, a response to the complaint must be given within 30 (thirty) days.

If the mobbing allegations are found to be justified, disciplinary measures are applied to the officer against whom the complaint was made. These penalties may include warnings, reprimands, or salary deductions, depending on the severity of the incident. Although the effectiveness of the complaint procedure is debatable in our country, it is quite important for documenting the complaint and acts of mobbing and creating written evidence for potential future disputes. Moreover, there are Supreme Court decisions indicating that not resorting to the complaint procedure is a deficiency in terms of both proof and establishing a causal link in claims for damages:

"Summary of the First Instance Court's Decision: ... With the appealed decision of the Administrative Court; in the dispute, the plaintiff's complaints that he was subjected to mobbing were not subject to any disciplinary or criminal complaints, and therefore the "existence of a causal link between the unlawful act and the harm suffered by the plaintiff", which is required in compensation cases arising from administrative actions, service faults, or faults of public officials, could not be established; since it cannot be accepted at this stage and with the current state of evidence that the events alleged by the plaintiff constitute mobbing against him, it was decided to reject the lawsuit on the grounds that the administration did not have a substantial service fault that would require compensation... REJECTION OF THE PLAINTIFF'S APPEAL..." (Supreme Administrative Court Ruling - Danıştay 2. D. E. 2020/1994 K. 2020/3149 T. 22.10.2020)"

2. Annulment Lawsuits and Full Jurisdiction Lawsuits

The Administrative Judiciary Law limits the types of lawsuits that can be filed against administrative acts and actions; these are annulment lawsuits of administrative acts and full jurisdiction lawsuits. These types of lawsuits, which are completely different in terms of their subject matter and functions, are briefly explained below, and the effectiveness of the protection they provide against mobbing is evaluated.

2.1. Annulment Lawsuit of an Administrative Act

All acts and actions of the administration are subject to judicial review; for an administrative act to be lawful, all of its elements of authority, form, subject matter, reason, and purpose must be lawful. The elements that need to be examined within the scope of mobbing are the elements of reason and purpose.

The element of reason can be defined as the reason that prompted the administration to perform an administrative act. For example, opening a disciplinary investigation against a civil servant who is frequently late for work without a valid excuse is an administrative act, and the reason for this act is the civil servant's frequent late arrivals without a valid excuse. The absence or unlawfulness of the reason for an administrative act invalidates the administrative act.

The element of purpose is the purpose for which the administrative act is performed. The purpose of an administrative act should always be the public interest. If an administrative act is carried out for personal reasons without considering the public interest, it invalidates the administrative act. For example, an act such as changing the workplace of a subordinate with whom a superior is hostile or changing their desk within a building would be invalid in terms of the element of purpose.

If any element of an administrative act is invalid, annulment of this act can be requested from the administrative courts in the jurisdiction where the administrative unit that performed the act is located. An annulment lawsuit must be filed within 60 (sixty) days from the date on which the administrative act was notified. Otherwise, the right to file a lawsuit is forfeited.

In our previous articles, it was explained that mobbing against public officials could take the form of constantly changing their workplace, assigning them inappropriate and low-quality tasks, relocating their working environment to unsuitable places, and wearing them down with frequent and continuous disciplinary investigations. All of these administrative acts can be requested to be annulled by alleging the invalidity of both the reason and the purpose elements. For example, if a civil servant is subjected to a disciplinary penalty for an act they did not commit, the reason element of the penalty given would be invalid; and in cases where the workplace is constantly changed without a valid reason, the purpose element of the appointment would be invalid.

"It has been found that the fact that the plaintiff, who was not found to be unsuccessful in his duties or to have any other negative aspects and whose records were positive, was subjected to disciplinary penalties that required such actions and that these penalties were also taken as a reason for transfer, shows that the appointment was intended as punishment, and since this does not allow the acceptance of these penalties as the reason element of the lawsuit in question, the legal soundness of the administrative court's decision to reject the lawsuit has not been found." (Supreme Administrative Court Ruling - Danıştay 5. D. E. 1998/2342 K. 1999/853 T. 07.04.1999)

Annulment lawsuits are an important means of resistance for victims of mobbing. A public official who has received consecutive disciplinary penalties for the purpose of psychological harassment can file an annulment lawsuit against these penalties and have them annulled, thus resisting this attack. Similarly, personnel who are constantly sent to different places through temporary assignments can also resist these assignments through lawsuits. The annulment of penalties does not indicate that mobbing was not applied against the public official; on the contrary, the determination that the penalties were unjust indicates the existence of mobbing.

“… Upon the annulment by a court judgment of three separate disciplinary penalties given to the plaintiff, a faculty member, it was understood that these actions, which were carried out against him as mobbing, harassment, and intimidation from the date he was appointed to the position by a court judgment, had a significant negative impact on his mental state, and therefore, compensation for the moral damage suffered by the plaintiff due to the unlawful acts and actions of the administration is necessary.” (Supreme Administrative Court Ruling - Danıştay 8. D. E. 2008/10606 K. 2012/1736 T. 16.04.2012)

Annulment decisions given as a result of annulment lawsuits are evaluated as evidence in subsequent damages lawsuits. In a case where a public official directly filed a full jurisdiction lawsuit against unlawful administrative actions applied to him without resorting to the annulment lawsuit, the Supreme Administrative Court upheld the decision to reject the lawsuit on the grounds that there was no evidence proving the unlawfulness of the said actions:

“In the case, the actions taken regarding the assignment of the plaintiff are subject to judicial review that can be subject to a lawsuit in administrative courts, and if they are unlawful, they can be annulled through the judiciary. On the other hand, it is not possible to accept that the assignment actions established by the administration against the plaintiff were established arbitrarily and intentionally without any legal reason, as a means of psychological pressure, without any evidence being presented.” (Supreme Administrative Court Ruling - Danıştay 5. D. E. 2016/24415 K. 2016/5256 T. 18.11.2020)

An annulment lawsuit is filed against the actions of the administration. Actions that occur in the course of life and that can be considered mobbing but are not considered administrative acts cannot be the subject of an annulment lawsuit. As will be explained below, these form the subject of a full jurisdiction lawsuit."

2.2. Full Jurisdiction Lawsuit

A full jurisdiction lawsuit is a type of lawsuit filed by individuals who have suffered damages due to unlawful acts or actions of the administration. Through a full jurisdiction lawsuit, a victim of mobbing can claim both material and non-material damages. Similar to an annulment lawsuit, a full jurisdiction lawsuit is also filed against the acts and actions of the administration.

A full jurisdiction lawsuit can be filed together with an annulment lawsuit, independently, or after waiting for the outcome of an annulment lawsuit.

Before filing a full jurisdiction lawsuit due to administrative actions, the administrative appeal procedure stipulated in Article 13 of the Administrative Judiciary Law must be exhausted. According to this, a person who has suffered damages due to an administrative act must first apply to the administration in writing to claim their damages. In the specific case of mobbing, administrative actions should be understood as inappropriate, rude, and threatening behavior of a superior towards a subordinate, or changes in the work environment without an administrative act.

“However, there is no hesitation regarding the fact that the psychological pressure exerted by the district governor and the district national education director, the recurrence of the skin disease, and the plaintiff's exposure to threats and insults by the district governor resulted from the actions of the administration and that therefore his claim for damages due to loss of income is due to an administrative action.” (Intermediary Administrative Court Ruling - Gaziantep BİM 3. İDD E. 2020/298 K. 2020/559 T. 17.9.2020)

Mobbing is often applied through a combination of administrative acts and actions. A superior who psychologically harasses a subordinate with the aim of mobbing may also want to put the victim under pressure through administrative acts such as disciplinary investigations and temporary assignments. In this case, a full jurisdiction lawsuit will be filed against both administrative acts and actions. If mobbing is applied through administrative actions, a full jurisdiction lawsuit can be filed within the prescribed period after the administrative appeal process has been exhausted.

Finally, it should be examined whether the actions subject to the full jurisdiction lawsuit constitute a personal fault of the person who committed the mobbing or a service fault that is a fault of the administration.

A service fault refers to acts and actions that result from the administration's failure to properly or at all perform its duties and consequently give rise to the administration's liability for damages. The negligent behavior of public officials while acting on behalf of the administration constitutes a service fault of the administration. In the case of mobbing, it can be said that there is a service fault and that the administration has a liability for damages if the behavior constituting mobbing is combined with public duty. On the other hand, if the actions of the person who committed the mobbing are not combined with public duty, the existence of a personal fault should be accepted. In such cases, since there is no service fault, the administration cannot be held liable and a full jurisdiction lawsuit cannot be filed.

In cases of mobbing, the distinction between personal fault and service fault has not been clearly established; however, a certain criterion has been determined by the following Dispute Court decision:

“A service fault, which can be defined as an objective defect, malfunction, or gap in the establishment, organization, or operation of a service that the administration is responsible for performing, occurs when the service is performed poorly, late, or not at all, and gives rise to the administration's liability for damages. In this context, service fault, departing from its meaning in private law, is an objective, anonymous, and independent fault. Liability due to service fault is the direct and primary reason for the administration's liability. On the other hand, there may be personal faults of public personnel that are inseparable from the service in relation to the damage suffered by individuals due to the duties performed by the public personnel. Likewise, if a public official commits a fault by using the means provided to them by the administration (duty, authority, tools, etc.), this fault will now be considered a duty/service fault rather than a personal fault. This is because the person acting on behalf of the administration is undoubtedly using public power. In the case in dispute, it is necessary to determine whether the negligent behavior of the public officials who caused the plaintiff to suffer by subjecting him to psychological harassment (mobbing), negative attitudes, and behaviors constitutes a service fault or a personal fault while performing their duties.” (Court of Jurisdictional Dispute Ruling - Uyuşmazlık Mahkemesi HB. E. 2016/417 K. 2017/200 T. 10.04.2017)

III. Legal Recourse for Employees Under the Labor Law

For individuals employed in private sector the legal recourse against mobbing will be examined under labor and compensation law.

An employee who is a victim of mobbing may terminate their employment contract for a valid reason based on Article 24/II of the Labor Law and claim severance pay, notice pay, and if the conditions are met, discrimination compensation and union termination compensation due to valid termination.

The valid termination must be made within a six-day statute of limitations from the date of the incident, otherwise, this right is lost. Considering that mobbing is a result of a process, it should be accepted that the six-day period starts from the last harassing act.

“When the defendant employer's letter dated 15.08.2012 is examined; it is seen that it was stated that the details of the decision given as a result of the workplace investigation would not be shared with the parties. In addition, it is stated in the response petition that the defendant employer organized a meeting with the plaintiff and his lawyer on 14.09.2012 after notifying this letter and that the invitation was made by the defendant company. Considering that the termination was carried out by the plaintiff employee on 17.09.2012, it cannot be said that the 6-day statute of limitations has passed.” (Supreme Civilian Court - Yargıtay 9. HD. E. 2016/19517 K. 2019/1922 T. 22.01.2019)

A victim of mobbing may claim non-pecuniary damages for the mental distress and anguish they have experienced, and pecuniary damages if they have suffered a financial loss from the employer. The basis of the claim for damages is the employer's violation of the duty to protect the employee and the violation of the employee's personal rights.

However, claims for pecuniary and non-pecuniary damages must be asserted by proving not only that the termination was justified but also that the act of mobbing occurred and that the actions suffered reached the level of a violation of rights.

In other words, acts that constitute mobbing as a whole may also be valid reasons for termination individually. In this case, the court may rule that the employer's actions do not constitute mobbing but that the termination is still justified. In this case, while the employee may claim severance pay, they cannot claim notice pay or pecuniary or non-pecuniary damages.

“According to the allegations and witness statements in the file, it is understood that the plaintiff had a family relationship with an employee who was dismissed from the workplace where he worked and filed a lawsuit against the employer, that the workplace management was uncomfortable with this closeness, that they showed this discomfort by removing the former employee's child who was visiting the plaintiff from the playground, and that the plaintiff was wanted to be removed from the dormitory even though other engineers were living in the dormitory, and that a change was previously made in the plaintiff's position. ... Sporadic, infrequent, and occasional unfair, rude, impolite, or unethical behavior cannot be characterized as mobbing. Even if the behaviors suffered by the plaintiff employee are considered established, they do not constitute the element of mobbing, although they justify the termination of the employment contract by the employee. For the reasons stated, the decision to accept the lawsuit in writing instead of rejecting it and to award non-pecuniary damages in favor of the plaintiff was erroneous and required a reversal.” (Supreme Civil Court - Y. 22. HD. E. 2014/3426 K. 2014/4165 T. 27.02.2014)

To summarize, not every act subject to valid termination pursuant to Article 24/II of the Labor Law can be considered mobbing; the distinction between a valid reason within the scope of this legal provision and mobbing must be made correctly.

BIBLIOGRAPHY

1. Çaptuğ, M. (2022). İş Yerinde Psikolojik Tacize Maruz Kalan Kamu Personelinin İzleyebileceği Hukuki Başvuru Yolları. Yıldırım Beyazıt Hukuk Dergisi, 359-396. https://doi.org/10.33432/ybuhukuk.1063489

2. Pala Kavalcı, Melike. Kamu Görevlilerinin Mobbing Davranışlarının İdari Eylem Niteliği. Necmettin Erbakan Üniversitesi Hukuk Fakültesi Dergisi, c. 7, sy. 1, 2024, ss. 241-63, doi:/neuhfd.1461200.

3. Kasapoğlu Turhan, M. (2013). Kamu Görevlileri Bakımından İşyerinde Psikolojik Taciz (Mobbing) ve Hukuki Korunma Yolları. Türkiye Barolar Birliği Dergisi.