NEWSLETTER-2020-metin

433 MISCELLANEOUS The correspondence in the group was conveyed to the employer by another employee who was in the same group. The employer there- upon terminated the employment contracts of the other employees in the group, including the plaintiff, and gave a warning to the employee who conveyed the correspondence. The court of first instance rejected the reinstatement case by evaluating the conduct of the employees within the scope of “the breach of employer’s trust” in Article 25/2-e of Turkish Labor Law numbered 4857. However, the Court of Cassa- tion overturned this decision by stating that the in-group conversations were confidential and that the termination due to the correspondence, which had been obtained illegally and delivered to the employer, could not be proven to be based on a valid or just cause. As well, the Court of Cassation drew attention to the fact that the correspondence between the employees were out of working hours. In a recent dispute examined by the Court of Cassation, in a WhatsApp group created amongst employees, the statements against the employer’s representative and the complaints on as to wages and bonus payments were noticed. In the conversation made by the plain- tiff in this group, he/she also encouraged his/her colleagues to “ not work hard, their efforts would be in vain.” The court of first instance rejected the reinstatement claim on the grounds that communication concerning wages and bonus payments within the WhatsApp group is against the contract and the principles of honesty and loyalty, since there was a commitment as to wage confidentiality. Moreover, the court stated in its reasons that there was no evidence that the employer obtained this correspondence illegally. On the other hand, the Court of Cassation found that it is not forbidden to create a group and com- municate with other employees unless it disrupts workflow and affects their work. Afterwards, a decision of reversal was made on the grounds that WhatsApp conversations are confidential in terms of privacy of communications, and that the termination of the employment contracts will be invalid if only based on such correspondence. 3 In addition, there are also decisions of the Court of Cassation wherein the sanctions based on WhatsApp correspondence, and ap- plied against the employees, are deemed as valid. For example, the 3 9th Chamber of the Court of Cassation, E, 2018/10718, K. 2019/559, 10.1.2019.