Constitutional Court Decision on Employees' Freedom of Expression
Introduction
Freedom of expression is a fundamental right that guarantees individuals the right to express their thoughts and criticisms. However, this right is often questioned within the framework of challenges encountered in business life and ethical norms. In a case brought before the Constitutional Court, the limits of the language that employees can use when objecting to workplace reports are questioned; in this context, whether harsh expressions such as "partisanship, whitewash, triggerman, frivolous, liar, slanderer" can be evaluated within the scope of freedom of expression is being scrutinized. This situation highlights the conflict between employees' pursuit of justice in the workplace and the employer's effort to protect its reputation.
This article aims to discuss the limits of freedom of expression, the ethical norms in the workplace, and the necessity of protecting employees' rights by examining this decision.
Concrete Case Subject to the Decision
In the case subject to the Constitutional Court's decision dated April 18, 2024, and application number 2022/58456 (the "Constitutional Court Decision"), the applicant, who works as an A-class occupational safety specialist, and a foreman were held responsible for a workplace accident that resulted in death during an inspection. However, the applicant, who had reported deficiencies in the workplace to relevant units before the accident and claimed that he was not consulted when the report was prepared, objected to this report and ensured that a second inspector was assigned. The second report stated that the applicant had no fault.
On the other hand, due to the use of expressions such as " partisanship, whitewash, triggerman, frivolous, liar, slanderer " in the applicant's objection petition regarding the first report, the main employer, Türkiye Petrolleri Anonim Şirketi, sent a notification to the subcontractor requesting that another employee be assigned as an A-class occupational safety specialist. In response, the applicant's employment contract was terminated by the subcontractor on the grounds of violating ethical and good faith rules under Article 25/II of Labor Law No. 4857 ("Labor Law"). The applicant filed a lawsuit for reinstatement, deeming this termination unjust and invalid.
The first-instance court ruled in favor of the applicant's reinstatement. The court evaluated the words in the objection petition as harsh criticism, stating that it was natural for the applicant to use these expressions as he was an occupational safety specialist and that they did not constitute insult. The local court assessed that the termination was invalid and found that, especially given that the applicant's workplace could be changed upon the request of the primary employer, terminating the employment contract was contrary to the principle of last resort.
Upon the employer's appeal against the decision, the competent Regional Court of Appeals ruled that the expressions used in the applicant's objection petition damaged the trust relationship with the employer and definitively rejected the reinstatement lawsuit. The Regional Court of Appeals stated that such negative behaviors adversely affected workplace harmony, disrupted workflow and order, and that it was no longer possible for the employer to continue the employment relationship.
The applicant argued that his words did not exceed the limits of criticism, did not contain insult against anyone, and that his expressions regarding the findings in the inspection report fell within the scope of freedom of expression, subsequently making an individual application to the Constitutional Court.
Assessment by the Constitutional Court
The Constitutional Court defined freedom of expression as the ability of individuals to access news and information freely, to be free from condemnation due to their thoughts and opinions, and to express, narrate, defend, convey, and disseminate these freely alone or with others in various ways. In its decision, the Constitutional Court included the following statements:
“The expression of thoughts, including those that are contrary to the majority, by all means, providing stakeholders for the expressed thought, the endeavor to realize this thought, and to persuade others on this issue, along with the reception of these endeavors with tolerance, are requirements of a pluralistic democratic order. Therefore, ensuring social and political pluralism depends on the peaceful and free expression of all thoughts. In this regard, the freedom to explain and disseminate thoughts is vital for the functioning of democracy.”
In line with these statements, the Constitutional Court emphasizes the need for preventive measures against interventions such as the termination of employment contracts within the scope of the obligation to protect freedom of expression. It points out that employer interventions in disputes related to employment contracts must be fairly balanced. Additionally, the courts of first instance must evaluate how the coercive regulations in employment contracts are determined, whether the interests leading to interference with employees' fundamental rights are superior and whether the termination of the employment contract is reasonable and proportional to the employees' behaviors.
The Constitutional Court drew attention to the rationale of Article 18 of the Labor Law, which regulates the principle of a valid reason for termination, stating that for an employee's behavior to warrant termination, it must significantly negatively affect the fulfillment of the employee's obligation to work, hinder the proper fulfillment of this obligation and that the continuation of the employment relationship must not be reasonably expected from the employer. According to this, a behavior can only be considered a valid reason if it leads to negative outcomes in the workplace. If the employee's behavior does not negatively impact the production and business relationship in the workplace, it cannot be cited as a valid reason for termination of the employment contract. In the concrete case, the applicant responded to the findings in the inspection report in the objection petition he wrote after being held responsible for a fatal workplace accident, stating in some parts of the petition that the inspector prepared a biased report to absolve the employer of responsibility and that he acted according to the employer's instructions. According to the Constitutional Court, these expressions by the applicant contain criticisms directed at being held responsible, and it is understood that the petition was written for this purpose.
The Constitutional Court evaluated whether a fair balance was struck between freedom of expression and the other party's honor and reputation rights in similar applications. In this evaluation, criteria such as (i) who expressed the statements, (ii) who the targeted person is and the prior behavior of that individual, (iii) the type, content, form, and consequences of the expressions used, and (iv) whether the expressions were taken out of the context in which they were used are considered. According to the Constitutional Court, in individual applications regarding freedom of expression, examining expressions by taking them out of their contexts can hinder the application of the principles outlined in Article 26 of the Constitution and the acceptable evaluation of the findings obtained. The Court emphasizes that the expressions used by the applicant in the objection petition should be considered as a whole without being taken out of context.
In the concrete case, the expressions subject to termination are found in only a few sections of the objection petition and aim to criticize the measures not taken by the employer. However, the Regional Court of Appeals did not take into account the entirety of the objection petition and evaluated the expressions out of context. As a result, the applicant's objection petition serves to criticize the measures not taken by the employer and to prove that he is not responsible, rather than being defamatory or offensive. The Regional Court of Appeals did not assess whether the applicant's expressions created a negative impact in the workplace and ignored the fact that the harm to the employer's reputation was not concretely demonstrated. Additionally, the Constitutional Court stated that despite there being no request from the primary employer in this direction, the termination of the employment contract was excessive to achieve its purpose and was contrary to the principle of last resort.
In the Constitutional Court Decision, it was assessed that the Regional Court of Appeals did not adequately consider the guarantees related to freedom of expression and did not conduct a diligent examination.
Conclusion
The decision of the Constitutional Court stands out as a precedent emphasizing the delicate balance that should be established between freedom of expression and the employer's right to protect its reputation. The decision indicates that employees are free to express their criticisms regarding practices and reports in the workplace, but this freedom also has its limits. A fair balance must be established between the employee's freedom of expression and the employer's honor and reputation rights. In this context, while the ability of employees to use harsh expressions when voicing their objections is considered a requirement of freedom of expression, these expressions must not carry defamatory qualities. The Constitutional Court highlights that the pursuit of justice by employees in the workplace should not serve as a basis for the employer's unilateral right to terminate.
In the concrete case, the Court stressed that the expressions used by the applicant should not be taken out of context, concluding that the Regional Court of Appeals did not demonstrate the diligence required by freedom of expression during the legal process. This decision reveals that employers must be more cautious when resorting to severe penalties such as termination and highlights the importance of acting by the principle of last resort. Ultimately, the Constitutional Court's decision serves as an important precedent in defining the limits of freedom of expression within the framework of workplace ethical norms and employee rights, protecting employees' rights to express their criticisms.
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