In the recent decisions of the Constitutional Court, the court has set certain criteria’s when it comes to the termination of the employment contract based on the data acquired through the controlling of the communication tools of an employee who works for a privately owned company.

In the incident subject to the decision; the company computer of the employee was left turned on and and the conversations where company and its managers were insulted through WhatsApp application were seen and this was followed by the termination of the employment contract., Upon termination,  The lawsuit filed bu the applicant was rejected and the court decision was finalized in favour of the employerSubsequently, an individual application by the former employee was filed at the Constitutional Court by the applicant on the grounds of the violation of rights.

The application was examined by The Constitutional Court in terms of respect for private life and freedom of communication.The criteria stated by the Constitutional Court in its decision are as follows;

1. It should be examined whether the employer had legitimate grounds showing that the examination of the communication tools and their contents made available to the employee is justified.

2. In a democratic society, the process of controlling communication and processing personal data should be carried out in a transparent manner and employees should be informed in advance by the employer about the process.

3. The interference made by the employer in the fundamental rights and liberties of the employee must be related to the aim to be achieved and should be suitable for the understanding of it In addition, the data obtained through the inspection activity must be used by the employer in line with the intended purpose.

4. In order for the interference made by the employer to be considered necessary, the same outcome should be unachievable through more temperate interference methods and should be mandatory.

5. In order for the interference to be considered proportional, the data to be processed or used in any way by controlling the communication should be limited to the purpose to be achieved, no restriction or interference beyond this purpose should be allowed.

6. In addition, it is necessary to look at whether the conflicting interests and rights of the parties are balanced fairly, taking into account the impact of the communication on the employee and its consequences for the employee. If it is determined that one of the parties personally bears an excessive burden, it may be concluded that the state has not fulfilled its positive obligations.

In cases where an audit is not carried out under the above criteria, it is accepted that unlawful interference with rights and liberties is made.

The current decision of the Constitutional Court has stated that;

• the employer failed to make notification to the employee regarding the authority and the scope of the workplace computer could be due to examination,
• controlling the WhatsApp application, which is known by all to be related to personal use, is against the privacy of the applicant's private life and the right to communicate,
• the employer has obtained the data on the workplace computer with illegally.

• failed to demonstrate the legitimate reasons for the interference,
• The employer failed to prove that it is considered it mandatory and necessary to examine the contents of the messages in the presence of witnesses,

It was granted to accept the applicant's application and to pay the applicant for the non-pecuniary damages.

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