Can WhatsApp Messages on a Company Phone Justify Dismissal?

Ownership of a company phone does not give an employer unrestricted access to every conversation stored on it. This decision concerned the use of an employee’s private WhatsApp messages as evidence supporting dismissal.

Background

An environmental engineer was issued a company phone. On inspecting it, the employer found WhatsApp messages containing insulting remarks about managers and colleagues. The case also concerned a photograph of three female colleagues taken in the canteen and sent to another employee with an insulting comment. The employer recorded the messages and dismissed the employee for just cause.

The lower courts’ findings

The first-instance court held that private WhatsApp communications could not be inspected without permission and relied on to justify dismissal merely because the phone belonged to the employer. It found the dismissal unjustified and awarded non-pecuniary damages for the invasion of privacy. The regional appellate court upheld that assessment.

The Court of Cassation’s decision

The 9th Civil Chamber upheld the regional appellate court’s judgment. The case illustrates that the courts consider how private communications were obtained as well as what they contain. The method of obtaining the messages and the limits imposed by the employee’s right to privacy were central to the assessment.

Does a company phone allow unrestricted monitoring?

No. Employers may have a legitimate supervisory role in relation to workplace devices, but that role is not unlimited. Employees should be informed in advance about use and monitoring arrangements. Monitoring must have a defined purpose and scope and respect privacy and personal data protection requirements. The lawful collection of evidence is particularly important where dismissal is contemplated.

What this means for employers

Clear policies on the use and monitoring of company devices, prior communication to employees and proportionate monitoring are important. Device ownership alone is insufficient: in a dispute, the court may examine both the material discovered and the way it was obtained.

This article provides general information. Each case must be assessed in light of its own circumstances.

Tevfik Özkan