PROVING OF MOBBING

1. INTRODUCTION

In the first article of our series on mobbing, we discussed what mobbing is, its elements, and its appearance and applications in Turkish Law. In this article, we will discuss the problem of proof in mobbing cases and the evidentiary facilities provided in the trial to solve this problem.

2. PROBLEM OF EVIDENCE GATHERING IN MOBBING

A. General Information on Proving in Turkish Civil Courts

In Turkish Civil Law, proof is essentially the process of convincing the court that is conducting the trial. The party that is obligated to prove a fact - that is, a real-life event or situation - is the party that has a legal interest in the occurrence of that fact. For example, an employee who claims to be owed overtime pay must present evidence of this to the court.

Proof is presented through evidence. In civil procedure law, the principle of presentation by the parties applies. This means that the party that wants to show evidence to prove a fact must either present that evidence itself or, if this is not possible, request that the court add it to the file. Except for matters specifically specified in the law or that affect public order, the court cannot collect evidence on its own initiative.

We would like to refer to the following decision of the 3rd Civil Chamber of the Supreme Court regarding evidence and its evidential weight:

"In civil procedure law, evidence is divided into two categories: conclusive evidence and discretionary evidence. In our law, conclusive evidence includes four types: confession [article 188 of the Code of Civil Procedure (HMK)], document (HMK article 199 et seq.), oath (HMK article 225 et seq.), and final judgment (HMK article 303). Discretionary evidence, on the other hand, is considered to include witnesses (HMK article 240 et seq.), experts (HMK article 266 et seq.), inspection (HMK article 288 et seq.), and other evidence not regulated by law (HMK article 192). It is accepted that the types of evidence are not limited in terms of discretionary evidence (Alangoya, Y./Yıldırım, K./DerenYıldırım, N.: Medeni Usul Hukuku Esasları, İstanbul 2004, s. 341, Arslan, R./ Yılmaz, E./ Taşpınar Ayvaz, S.: Medeni Usul Hukuku, Ankara 2017, s. 389-390)." (Supreme Civil Court Ruling - Y. 3. HD., E. 2020/3108 K. 2020/7086 T. 25.11.2020)

If there is conclusive evidence to prove a fact, the fact is no longer disputed by the court and is considered proven. Objections can be raised against the authenticity of conclusive evidence (forgery, defect of will, etc.), or it can be countered with a document of the same evidential weight.

Discretionary evidence is evidence that creates an approximate belief in the judge conducting the trial. The evidential weight of discretionary evidence and whether or not it can be taken into account in the judgment are assessed by the judge. However, it cannot be said that the judge is completely free in evaluating discretionary evidence. In fact, in the reasoned decision, the judge must justify why or why not a particular piece of evidence was taken into account in the judgment.

B. Challenges in Establishing Proof of Mobbing

Mobbing, by its very nature, arises from continuous behaviors spread over a long period of time. Since employers are also a party to mobbing trials, it is difficult for employees to access evidence from the employer's side, and witnesses to the incident may remain silent for fear of losing their jobs. The following are some of the problems encountered in the use of evidence in mobbing cases:

a. Lack of Conclusive Evidence

As mentioned above, the law recognizes four types of conclusive evidence: confession, documentary evidence, oath, and final judgment. In the context of mobbing, it is not necessary to examine confessions and final judgments.

Documentary evidence is a document that documents a legal act, transaction, or relationship and bears the identifiable signatures of the parties. Ordinary written documents can be prepared by the parties themselves, while official documents must be prepared by units authorized to issue the relevant document. In this context, a lease agreement prepared by the parties is an ordinary written document, while a lease agreement prepared in the form of notarization is an official document.

An oath is a verbal statement made before the court by one of the parties, under the procedure specified by law, affirming the truth or falsity of a fact relevant to the resolution of the case, and the oath is considered conclusive evidence. While the oath can be used to prove individual facts, it is generally insufficient to prove phenomena like mobbing, which by their nature extend over time and involve multiple individuals.

b. The Prolonged and Systematic Nature of Mobbing

As discussed in our previous article, mobbing is characterized by sustained and systematic attacks against an employee over a period of time. These attacks must also be intentional and aimed at demoralizing and socially isolating the victim. Proving the existence of all these elements can be extremely challenging.

While mobbing attacks carried out through emails or messages can serve as evidence, perpetrators often realize the implications of their actions and resort to face-to-face interactions. Even if there are other employees who witness the attacks, proving mobbing solely based on testimonies of individual incidents is quite difficult. Additionally, witnesses may not recall every detail, and even if they do, they may be hesitant to testify against the employer for fear of losing their jobs.

c. The Hardship of Employees in Gathering Proof

The employee's vulnerable position in relation to the employer also manifests itself in the matter of proving mobbing. Once an employee resigns due to mobbing, they lose access to the computer networks, files, and correspondence that were previously accessible to them in the workplace. Even if these records are used as evidence in the case, the employer can easily eliminate them and claim that they do not exist. In practice, it is rare for an employee to systematically collect evidence throughout the mobbing period.

It is also highly likely that other employees who witnessed the mobbing will not be able to recall every incident, and even if they do, they may be hesitant to testify against the employer for fear of losing their jobs. Therefore, full proof of mobbing through witness statements is quite difficult.

When all these factors are considered together, the courts that apply the law have also recognized that it is very difficult to prove the existence of mobbing within the framework of civil procedure rules. For these reasons, a special evidentiary regime for mobbing trials has been developed over time by the higher courts through case law.

3. PROVING OF MOBBING

We would like to refer to the prevailing case law of the General Assembly of the Supreme Civil Court of Turkish Law regarding the evidentiary regime for proving mobbing:

"Finally, it is necessary to address the issue of proof in relation to psychological harassment. Although the victim who claims to have been subjected to psychological harassment is responsible for proving this claim, it is beneficial to reach a conclusion by taking into account the typical course of events and the rules of experience, given that psychological harassment is generally an event that occurs between the perpetrator and the victim. This approach, which is called "approximate proof", is also in accordance with the nature of the matter. There are also some regulations in Labor Law that relax the rules of proof. For example, as stated in the last paragraph of Article 5 of the Labor Law No. 4857, when the worker demonstrates a situation that strongly shows that the employer acted contrary to the duty of equal treatment, the employer is obliged to prove that such a violation does not exist. Similarly, the seventh paragraph of Article 25 of the Labor Unions and Collective Bargaining Law No. 6356 clearly states that the worker is obliged to prove the claim that the employer has discriminated against the union except for dismissal, but if the worker strongly demonstrates a situation that indicates union discrimination, the employer is obliged to prove the reason for its behavior." (General Assembly of Supreme Civil Court Ruling - YHGK., E. 2017/3017 K. 2018/99 T. 24.01.2018)

Here, the Supreme Civil Court extends the ease of proof granted to workers in relation to claims of violation of the duty of equal treatment and dismissal for union reasons under the Labor Law to cover claims of mobbing. Accordingly, if the worker can put forward strong indications that he or she has been subjected to mobbing, the burden of proof will shift and the employer will have to prove that mobbing has not occurred.

What is meant by these "strong indications" will be determined by the judge on a case-by-case basis. If the factual background described in the petition is logical and consistent and does not contradict the other evidence in the file, the judge should assume that mobbing has occurred. Of course, the plaintiff will need to present some evidence in addition to a consistent story. The judge cannot accept the existence of mobbing solely on the basis of the plaintiff's statement.

When examining the decisions of the higher courts, it can be seen that the plaintiffs often present health reports obtained from psychiatric services and forensic medicine boards as evidence. Indeed, when supported by other evidence, the Court of Cassation places the burden of proof on the employer to prove that the diseases that indicate mobbing are caused by a reason other than mobbing, otherwise it accepts that mobbing has occurred.

"...the plaintiff was diagnosed with anxiety based on the findings of palpitation, insomnia, anxiety, loss of appetite, weight loss, weakness, fatigue, resentment and feelings of distress in the doctor's reports taken; no evidence was presented that there was any other family, economic, environmental or social reason other than the workplace that triggered or contributed to this disorder; it was stated in the Bornova Health Application and Research Center Polyclinic Patient Evaluation Form that the patient experienced anxiety, palpitation, tremors, stomach cramps, crying spells and jaw clenching after the devaluation he experienced at the workplace and continued intensively for three weeks;" (Supreme Civil Court Ruling - Y. 22. HD., E. 2014/2157 K. 2014/3434 T. 21.02.2014)

E-mail correspondence also plays an important role in proving mobbing. The presence of rude, disrespectful and constantly critical emails to the employee is evidence of mobbing. However, it should be noted that e-mail correspondence is generally not sufficient for proof on its own and should be supported by witness statements.

Witness statements are the most important element in proving mobbing. It is very important that the witnesses have witnessed the mobbing behaviors firsthand. Hearsay statements are not considered credible by the courts. The statements of the witnesses must also be consistent with each other and with the other evidence in the file. In particular, contradictory witness statements given about a specific incident significantly reduce their credibility in the eyes of the judges. Finally, the statements of witnesses who share the same work environment with the victim will also be taken into account regarding the victim's deterioration in health and mental state over time.

Witnesses can also provide crucial insights into the intent behind the behaviors inflicted upon the victim. For instance, coworkers can discern whether the constant criticism directed at an employee whose work is belittled stems from genuine feedback or serves as a form of mobbing.

Furthermore, documents from the employee's personal file can serve as evidence. In particular, performance evaluation records and disciplinary proceedings initiated against the employee can be significant proofs in establishing mobbing.

When recounting the mobbing incidents, it is essential to present them chronologically, maintaining a cohesive and consistent narrative. It should be remembered that mobbing cases involve proving a pattern of behavior rather than a single isolated incident. Corroborating witness statements, email exchanges, and a medical report obtained towards the end of this process can effectively establish mobbing.

In this regard, we would like to refer to a Court of Cassation decision that aptly summarizes these points:

"When the emails, correspondence, information and documents, health reports and witness statements contained in the file are evaluated together with the entire scope of the file; it is understood that after the change in the management of the defendant company, the plaintiff's promotion was not made in a timely manner, the power of attorney fees collected from the files that the plaintiff represented the company after 29.03.2013 were not paid to the plaintiff, 11 lawsuits for power of attorney fees were filed by the plaintiff against the defendant after dismissal with a request for the collection of power of attorney fees, some of which were final, the content of the correspondence between the plaintiff and the defendant's representative revealed that the vice president had a conflict with the plaintiff from time to time in terms of working style and behavior, and finally, the plaintiff was asked for his defense with an email sent by the vice president on 28.05.2014, citing reasons such as the plaintiff's domineering behavior towards other personnel, etc., and subsequently, a person who was not a lawyer but had a lawyer's license was appointed as the plaintiff's legal advisor manager, and a short time later, on 09.07.2014, the plaintiff was reprimanded, although there was no concrete evidence to support the conditions, ... was transferred to ... and the report prepared by the inspection board of ... dated 22.07.2014, which also referred to the wrongfulness of the applications regarding the plaintiff, was prepared and the plaintiff was held responsible for this, as a result of all these events, the plaintiff's psychology was disrupted and he had a crisis after the meeting with the employer on 23.07.2014 and went to the hospital, and the plaintiff was given a 3-day sick leave document by ... Education and Research Hospital with a diagnosis of chest pain and anxiety disorder, treatment began in the psychiatry department of the same hospital on 24.07.2014, the plaintiff's statement that he was subjected to ... was recorded in his patient records and his emotional state was recorded as "anxious", the plaintiff was diagnosed with anxiety disorder and drug treatment was started, the plaintiff's treatment continued after 11.08.2014 and after the termination of the employment contract, as was established by the performance evaluation scores and even the statements of the defendant's witnesses, the plaintiff was a good employee who was experienced in his profession, but as was also confirmed by the statement of the defendant's witness ..., the plaintiff's morale was low and he was unhappy for the last 1-2 months before the termination of the plaintiff's employment contract.

When the chronological order of the events described is examined, it is understood that the plaintiff was subjected to the behaviors of the employer's representative aimed at intimidation, passivity and leaving the job of his own will, and that these behaviors also caused damage to his health, and that the allegations coincide with the specified actions, it was concluded that the plaintiff was subjected to mobbing. On the other hand, it is seen that the behaviors to which the plaintiff was subjected were not prevented despite the fact that the upper authorities were informed of the situation, and that the evaluation board formed after the termination reported that the plaintiff was not subjected to mobbing.

Therefore, the plaintiff's request for non-pecuniary damages should be accepted, and a judgment should be made regarding this claim by evaluating the amount of non-pecuniary damages awarded by the First Instance Court in accordance with its conclusion." (Supreme Civil Court Ruling - Y. 22. HD., E. 2017/42766 K. 2020/5460 T. 02.06.2020)"

In the verdict, our colleague, the victim of mobbing, and their lawyer meticulously presented and substantiated the mobbing process and incidents chronologically in the file. The court conducting the trial explicitly characterized the following actions as mobbing: the suspension of seniority advancement after a change in management at the defendant employer's company, the non-payment of earned attorney's fees, the confrontational attitude of superiors after certain dates, being placed under the command of individuals below their professional qualifications, being subjected to unfair disciplinary investigations, and the deterioration of their health as a result of all these events. Consequently, the court ruled in favor of our colleague and awarded them non-pecuniary damages.

4. CONCLUSION

While civil proceedings are governed by strict procedural rules, it is crucial to remember that the parties involved are individuals, and the subject matter of the dispute ultimately revolves around human relationships. Adherence to rigid procedural rules without regard to the realities of life can lead to unjust outcomes for the affected individuals. In this context, we believe it is appropriate to relax the rules of evidence law in favor of employees in mobbing cases.

In our next article, we will delve into the administrative and judicial remedies available to victims of mobbing, as well as the procedural rules governing litigation and claims.

Bibliography:

1. Taşkın, Ahmet. “Mobbing Davalarında İspat Sorunu.” Ankara Hacı Bayram Veli Üniversitesi Hukuk Fakültesi Dergisi, 20. cilt, no. 2, 2016, ss. 391-438. DergiPark, https://dergipark.org.tr/tr/pub/ahbvuhfd/issue/48094/608121

2. Palabıyık, Burak Buğra. “Türk iş hukukunda mobbing.“ Hacettepe Üniversitesi, 2018, https://tez.yok.gov.tr/UlusalTezMerkezi/tezDetay.jsp?id=mM9QMrm1P8gzpzwVdMSPWg&no=QCHr2ARoGsi9XmP7KS3OAA

3. Kılıçoğlu, Evren. Medeni Yargılamada Hukuka Aykırı Yoldan Elde Edilmiş Deliller. On İki Levha Yayıncılık, 2021.