Le droit et les limites de gestion de l'employeur

The employer employing workers in their business organization for production of services and/or products and the worker and/or workers being contracted to perform their acts of transacting business within this organization, while on the one hand giving rise to the outcome that the worker, with their own free will, come under the management and supervision of the employer, on the other hand, it gives rise to a legal situation which does not at all agree with the criteria of freedom of contract and equality of parties by creating a hierarchical construct with the worker going under the employer's management. This hierarchical relationship which is not at all encountered in other contracts made within the framework of the principle of freedom of contract also brings forward the characteristic which is unique to only employment contracts. In this hierarchical structure, the worker agrees, at their own volition, to work under the management and control of the employer however, against this, the employer in turn, limits, with the work condition set down again by the provisions of the employment contract, this right to manage which the worker has granted. In this respect the employment contract is of a founding nature in the rise of the right to manage and the establishment of its limits. In this sense, instructions pertaining to the behaviors of the workers, which do not have any relation, even indirectly, to the conducting of the work, for ensuring a certain order or security at the workplace, are instructions which the employer, undertaking the workplace and business risk and responsibility, gives within the scope of freedom of enterprise and should be appraised within the scope of the employer's right to manage in the wider sense. Because the worker is dependent on the employer in the personal and legal sense, by virtue of this dependency relationship, they are also obliged to follow such instructions from the employer who takes on the management risk and responsibility of the workplace and the business. The obligation of the worker to obey "to the extent required by the rules of good faith" such instructions of the employer which pertain to the workplace order is also regulated as compulsory legal rule in the provision of TBK ar.399. As the worker has a debt to obey instruction against the right to management which comprises the power of the employer to give instructions for the concretization of the worker's performance debt and the provision of workplace order, it shall also be required to accept that the employer's authority to apply disciplinary sanction, which is the sanction for the worker not honoring their debt of obeying instruction, is also a part and an integrals element of the right to manage. Business decisions which we call in the wider sense as the employer's right to manage, take their legal basis from the "Freedom of Enterprise" of the Constitution which adopts market economy. However, the employer's right to manage which arises from their freedom of enterprise shall be the subject to adjudicator intervention to the extent they pertain to the rights and contractual interests of the workers contracted to the employer with the employment contract and beyond that, the basic rights and freedoms of the workers assured by the Constitution, and the compliance of the employer's decision with the laws shall be subject to judicial supervision on the basis of the provisions of the mandatory law, rule of goodwill and criteria of proportionality. For this reason, the employer's right to manage, on one hand for reason of pertaining to the worker and therefore, the human (the basic rights and freedoms person has simply because he or she is a human being) on the other hand as the result of pertaining to the employer who assumes the business risk, in terms of the rights and obligations tied to the freedom of enterprise in the social state model adopted in the constitution and finally in its aspect pertaining to business relationship and employment, pursuits of legal solutions to problems brought about by the economic developments at the global, national and regional level and the increasing condition of competition, brings about the need of continuous change in the content of the employer's right to manage and the limiting legal norms. In the process of harmonization to European Union norms, the signing of the international treaties relating to basic rights and freedoms and, by following the procedure foreseen in the Constitution, making them into internal law codes and with the process of conversion of a noteworthy portion of the Regulations regulated within the scope of the EU secondary legislation into provision of law, the national judicial decisions developing within the frame of the European Court of Human Rights and the Court of Justice have given great importance to the protection of the worker's personal rights in the business relationship and have greatly narrowed down the limits of the right to manage conferred upon the employer in the face of the personal rights of the worker. As the result of the adaptation of especially the principle of proportionality among these principles to business relationships it is examined in both the Court of Justice decision and in the Judicial bodies of National Courts whether the process and practice conducted by the employer serve a legitimate purpose, whether the practice conducted by the employer is requisite in meeting a real need of the workplace or the enterprise, whether the tools chosen to reach this purpose are appropriate and finally, whether there is a reasonable balance between the benefit provided to the employer and the injury to the worker. In the said court decisions, in the determination of whether the principle of equipment treatment and the bans on discrimination are being observed by the employer, in the determination of the limits of employer interventions made to the basic rights and freedoms of the workers within the scope of private living sphere, in the employer's electronic surveillance practices, the principle of proportionality is made use of as the assurance of the basic rights and freedoms of the workers. Finally, as the result of the worker participation in the management on the basis of "social dialogue model" which has gained a significant acceleration in the EU legislation and practice, the protection of the basic rights and freedoms of the employees by ensuring social consensus between the worker and the employer and in the end the establishment of work peace by creating a participative and democratic work environment, are developments of a nature that shape the employer's right to manage and give rise to a re-definition form the limits of that right. On the other side, regarding the Labor Act norms which limit the employer's right to manage; the most important among these without doubt is the "the employer not making unilateral changes to the working conditions" in art.22, which has attained a new content with the Labor Act number 4857 and which is the reflection of the principle of binding by contract in labor law. The said provision is an absolute mandatory provision. We are of the opinion that, to the extent the provisions of the Turkish Code of Obligations pertaining to the general transaction conditions are applicable to the character of business relations; its implementation by analogy will eliminate a gap and be a criterion in the judicial control of internal regulations. The purpose of occupational health and safety which is an important discipline within contemporary labor law is the protection of the workers' rights to life and health by also ensuring the prevention of work accidents by creating a safe and healthy work environment for workers. The employer, within the scope of its debt to protect the worker arising from public law for reason of assuming business risks and arising from private law for reason of the employment contract, fulfils its obligation to protect the rights to live, health and bodily integrity of all workers by exercising its right to manage. In other words, for the employer who undertakes the obligation of protecting the right to live and health of all workers at the workplace within the scope of, mandatory regulations pertaining to public order on one side, and the debt to protect the worker in the employment contract on the other side, the right to manage is the most important tool. The employer shall fulfill the function of protection and improvement of occupational health and safety at the workplace through the instructions it shall give within the scope of right to manage and by supervising whether such instructions are being obeyed. In internal law, on the other hand, for the first time in art.417/f.1 of TBK the protecting and respecting the worker's personality, providing an order at the workplace which is conformant with goodwill principles, and taking necessary measures to avoid especially psychological and sexual harassment of the workers and to avoid further harm to those who have suffered such harassment are listed among the employer's obligations. The employer's right to manage relates to the conducting of business at the workplace and the provision of trust and order at the workplace and apart from this the employer has no right to manage on the behavior of the worker outside of the workplace. As among the worker's personal rights, the rise, developments and growth of the worker's freedom of thought and expression has also brought along the notion of industrial democracy. The process which initially started as the workers expressing their complaints about the workplace, working condition and wages before the employer's representatives or the employer and, as the case may be, as complaining or criticizing the working condition at the workplace, has in time started a process of the worker participating in management which extended to the determination of the human resources policy and giving a right to speak in the establishing of working conditions. We believe that the employer shall be effective in the prevention of work accidents at the workplace by eliminating the obstacles before the worker's freedom of thought and expression with the instructions that it shall give within the scope of its right to manage. As another personal right of the workers, the worker's freedom of thought and faith, while revealing an obligation of impartiality requiring the abandonment of keeping in view the religious beliefs of the employees within the scope of bans of discrimination to the employer, on the other side, the protection of freedom of thought and faith makes necessary a principle of tolerance which can give rise to the result that the employer adapts the working conditions according to the workers' religious beliefs. Regarding the selection of the worker's place of settlement, the employer's right to manage becomes in question in two cases; the first, is the employer's direct intervention on the sell and utilization of the worker's place of settlement and the second is the changing of the worker's place of duty on the basis of the workplace internal regulations to also impact the worker's place of settlement, the records of reservation regarding the workplace change brought in individual and collective labor agreements. Because of the very general, abstract regulation in the form of "agrees to work every in Turkey of the workplace changing records which is frequently encountered in practice, we are of the opinion that judicial control is performed in the sense of whether an explicit intervention is made to the worker's personal rights foreseen in the provision of TBK art.27. As Montsequieu states in his work titled "the Spirit of Laws" and as adopted in contemporary Constitutions, while the prevention of arbitrariness of political power is ensured by the principle of separation of powers, the arbitrariness of the employer who holds the right to manage shall be possible to prevent with drawing the limits of this power with the Constitution, mandatory law provisions, collective labor agreements, employment contracts and workplace practices and the participation of the worker in the management.