326 / 522
Difficulties Regarding Evidence
A substantial problem in practice is the difficulties regarding evi-
dence of the mobbing. Most of the time, it is impossible to prove mob-
bing by conclusive evidence, due to the nature of the practice.
Therefore, the Court of Cassation states in several decisions that the
employee may prove the practices concerning mobbing without pre-
senting conclusive evidence, and determines the main principles in this
respect.
According to the aforementioned decision dated 25.09.2013 of the
General Assembly of Civil Chambers
6
, it is sufficient to present con-
sistent and strong indications regarding the claimed practices. By con-
sidering the ordinary flow of life, the indications shall be assessed and,
by virtue of this assessment, if it is concluded that mobbing has most
probably occurred, the case shall be deemed to be proven.
The decision dated 21.02.2014 of the 22
nd
Civil Chamber of the
Court of Cassation
7
sets forth certain stipulations regarding the evi-
dencing process. In this decision, the Chamber, in accordance with the
aforementioned decision, states that conclusive evidence is not
required, and the personal persuasion of the judge is sufficient. In addi-
tion, considering the difficulties regarding the evidencing of mobbing
practices, the principle of interpretation in favor of the employee shall
be applied in the case of doubt. In the case at hand, the witness state-
ments affirming and completing each other, several conclusive medical
reports that are in accordance with each other, and the witness state-
ments are deemed to be sufficient by the Chamber to prove that the per-
sonal rights of the employee have been violated, and that the treatment
constitutes mobbing.
Conclusion
With the TCO, the obligation of the employer to protect and
respect the personal rights of the employee is explicitly regulated, and
310
NEWSLETTER 2015
6
See footnote 3; the decision of the General Assembly of the Civil Chambers of Court of
Cassation dated 25.09.2013, numbered E. 2012/9-1925, K. 2013/1407.
7
The decision of the 22nd Civil Chamber of Court of Cassation dated 21.02.2014, numbered E.
2014/2157, K. 2014/3434.