Litigation and Alternative Dispute Resolution

Author: Piraye Erdem

Introduction

Today, in many employment contracts, the use of tools such as computers, corporate e-mail accounts, and telephones allocated by the employer is limited and the employer’s right to control them is regulated. The employer bases such a supervise and audit right on the management right regulated under Article 399 of Turkish Code of Obligations No. 6098. The right of management entitles the employer to make general regulations regarding the conduct of the work and the behavior of the employees at the workplace and give them special instructions, provided that they are not contrary to the law, the employment contract, and, if any, the collective bargaining agreement. However, the employer’s management right is not unlimited. The employee’s fundamental rights and freedoms constitute the greatest limit to the management right. In many of its recent decisions, the Constitutional Court states that the employer’s right to audit the employee’s communication is limited by the right to privacy and freedom of communication. In this article, the latest decision of the Constitutional Court numbered 2019/25604 and dated 21.09.2022 (“Decision”), published in the Official Gazette dated 15.11.2022 and numbered 32014, is discussed.

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