03 Nov VIOLATION OF FREEDOM OF EXPRESSION DUE TO TERMINATION OF EMPLOYMENT CONTRACT DUE TO SOCIAL MEDIA SHARING
The applicant worked in the Public Health Directorate (Institution) with a fixed-term employment contract depending on a private company (sub-employer). The applicant made a personal post from his account on the social networking site, including the statements “O human drafts, executive corruptions …”, which dealt with the pressures seen by subcontracted workers and managers. Because of this exchange, some managers of the Institution complained about the applicant and the Criminal Court of First Instance decided on the applicant’s conviction in the case filed. Upon the finalization of the decision to postpone the disclosure of the aforementioned provision, the employment contract of the applicant was terminated by the subcontractor. The employment claim determination case filed by the applicant against the sub-employer and the Institution was rejected by the Labor Court (Court). The applicant’s application for appeal against the said decision was rejected by the Regional Court of Justice (Chamber) and his appeal request was rejected by the Court of Cassation.
The applicant claimed that his freedom of expression was violated due to the termination of his employment contract due to social media sharing about the managers of the institution while working in a public institution affiliated with the subcontractor company.
The Court’s Assessment
In addition to working in the Institution depending on the sub-employer, the applicant also serves as the general chairman of an association that operates for subcontracted workers working in a public institution. In this context, it should be accepted that the views that the applicant will express on issues related to subcontractors also cover social issues in the field of interest of the non-governmental organization he represents, as a requirement of his duty as the president of the association he is conducting, beyond the identity of the subcontractor.
The applicant used the general concept of “manager” in his share, but did not use any expression that his words were aimed at a specific person. On the other hand, the courts accepted that some of the interlocutors of the remarks were managers of the Institution, citing the fact that the applicant was a subcontractor and those participating in the criminal case were managers in the same Institution as the applicant. It was possible for the courts of instance to accept that the applicant’s main goal was to humiliate the managers of the institution, but only by attaching meanings to the words used by the applicant beyond the meaning given by him.
Moreover, the applicant claimed in the statements he used that the pressure on subcontracted workers could only be carried out by “people who do not have managerial and human qualities”; he put forward his criticisms in an exaggerated way. In many of its decisions, the Constitutional Court has recognized that freedom of expression should be interpreted broadly in such a way as to allow some degree of exaggeration or even incitement. For this reason, it cannot be said that there is a situation that requires a departure from the previous evaluations of the Constitutional Court in terms of the statements on the concrete incident.
In the end, the courts of instance could not objectively and convincingly demonstrate that the statements on the concrete incident require an extremely severe and last resort intervention, such as termination of the employment contract, which can be considered as a last resort.
The Constitutional Court has ruled that the freedom of expression has been violated on the grounds described.