Committee on the Elimination of Discrimination
against Women
CEDAW/C/51/D/28/2010
Communication No. 28/2010
Views adopted by the Committee at its fifty-first session, 13 February–2 March 2012
Submitted by:R.K.B.(represented by counsel, Ozge Yildiz Arslan)
Alleged victim:The author
State party:Turkey
Date of the communication:14July 2009 (initial submission)
References:Transmitted to the State party on 28 October 2010 (not issued in document form)
Date of adoption of decision:24February 2012
Annex
Views of the Committee on the Elimination of Discrimination against Women under article 7, paragraph 3, of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (fifty-first session)
concerning
Communication No. 28/2010[*][**]
Submitted by:R.K.B. (represented by counsel, Ozge Yildiz Arslan)
Alleged victim:The author
State party:Turkey
Date of the communication:14 July 2009 (initial submission)
References:Transmitted to the State party on 28 October 2010
(not issued in document form)
The Committee on the Elimination of Discrimination against Women, established under article 17 of the Convention on the Elimination of All Forms of Discrimination against Women,
Meetingon24February 2012,
Adopts the following:
Views under article 7, paragraph 3, of the Optional Protocol
1.The author of the communication is Ms. R.K.B., a Turkish national, born on 1 January 1969. She claims to be a victim of violations by Turkey of her rights under article 1; article 2, paragraphs (a) and (c); article 5, paragraph (a); and article 11, paragraphs 1(a) and (d), of the Convention on the Elimination of All Forms of Discrimination against Women (Convention). The author is represented by counsel, Ms. Ozge Yildiz Arslan. The Convention and its Optional Protocol entered into force for Turkey on 19 January 1986 and 29 January 2003, respectively.
Factualbackground
2.1From June 2000, the author worked as a cashier, pre-accountant and make-up artist at the unisex hairdresser’s shop in Kocaeli. On 8 February 2006, her contract was terminated allegedly on the ground that there was a complaint from a customer against her. She did not receive any other information on the motives for her dismissal. In her initial submission to the Committee, the author refersto the testimony of Ms. G.D., who confirmed that, before the authorleft the workplace, one of the managers of the hairdresser’s shop tried to make her sign a document attesting that she had benefited from all her rights. According to the same witness statement, the manager threatened the author that if she did not sign that document, he would “spread rumours about her relationships with other men”.Although the author, who is a married woman, was “very scared” that it would harm her, she refused to sign the document in question.
2.2On 10 February 2006, the authorfiled an initial claim before the Kocaeli 3rd Labour Court for severance pay and other employment related damages, since her work contract had been terminated without a valid reason.The author submits that, according to article 19 of the Labour Act, the employer has to clearly state the reasons for terminating the contract of an employee. The author asked the Kocaeli 3rd Labour Court to award a damage of 1,750 Turkish liras. By a petition of amendment, she raised her claims to 19,424.14 Turkish liras.
2.3On 1 May 2006, in its defence,the author’s employer submitted to the Kocaeli 3rd Labour Court a letter of response and, on an unspecified date, a copy of the termination of contract statement dated 8 February 2006, indicating that the author had allegedly been verbally warned several times about her behaviour which ran contrary to the business ethics and that she had failed to submit explanations. In those documents, the employer claimed that the author had provoked rumours by displaying, beyond ordinary friendship, “seemingly sexually-oriented relationships with persons of the opposite sex at the workplace”. The employer argued before the Kocaeli 3rd Labour Court that in their area of activity it was vital for the employees to refrain from even the slightest offence against morality and it asked for the dismissal of the case. It also argued that the author had no right to ask for severance and notice pay, that her labour claims had been paid in full, that the timelimit had elapsed in respect of all claims, that the author had signed payslips without objections and that the salary for February of 2006 had been paid to her via postal order.
2.4During the court proceedings, the Kocaeli 3rd Labour Court heard witnesses on behalf of both parties. The author’s husband testified before the Kocaeli 3rd Labour Courtabout the moral integrity of his wife and gave evidence to the effect that Mr. D.U., a colleague of the author with whom according to rumours she had a relationship, was only a family friend. He also testified that most of the married men working at the hairdresser’s shop with the author had extramarital relationships and that his wife had sometimes expressed her repulsion about this situation. The author’s ex-colleague, Ms. G.D., gave evidence, confirming the version of the author to the effect that after the latter haddismissed, Mr. D.U. had asked her to give up the case, otherwise the employer would accuse her of having an affair with a man called Mr. M.Y. Ms. G.D. also confirmed that the author did not have any relationship with Mr. D.U., and that she thought her problems started when she had refused to give her house keys to the second manager of the hairdresser’s shop, Mr. M.A., who wanted to bring his girlfriend there, although he was a married man.
2.5The Kocaeli 3rd Labour Court also heard witnesses on the employer’s behalf. As to the alleged reasons for the author’s dismissal, a witness for the employer, Mr. H.U., stated that there was a complaint from a customer against her. Amongst the other employer’s witnesses, the manager of the hairdresser’s shop, Mr. M.A., claimed that the author had a relationship with one of the managers, Mr. D.U. He added that the author and Mr. D.U. had already had a relationship when they were single and that the relationship continued after they had each married other people some two or three years prior to the author’s dismissal. Mr. M.A. also testified that the relationship between the author and Mr. D.U. affected her work. In particular, when Mr. D.U. dealt with female customers, the author would react to it, showing signs of jealousy and causing disturbance to colleagues and customers. He added that the author and Mr. D.U. used to wander off and eattogether out of the office and the author made use of her relationship with Mr. D.U. and would occasionally came to work late. For the last five years, she had not applied make-up on customers whom she did not like but her behaviour was tolerated. Mr. M.A. also testified that shortly before the author’s dismissal, a customer, Ms. A.A., complained to the shop owner, Mr. A.G., about the fact that the author “was in an indiscreet affair” with a colleague. According to Mr. M.A., the author was requested to provide explanations, failed to do so and was dismissed. Mr. M.A. also stated that his request for other colleagues’ home keys (see paragraph 2.4 above) was related exclusively to his private life and had nothing to do with the author.
2.6The author states that it was from the employer’s letter of response and the termination of contract statement submitted in the framework of the court proceedings, that she had “learned for the first time” that her contract had been terminated due to “displaying seemingly sexually-oriented relationships with persons of the opposite sex”. On 6 June 2007, the author brought an additional action concerning her unjust dismissal. She stated that,since the employer had contended that her dismissal was a result of her relationship with Mr. D.U., and that Mr. D.U. employment hadnot been terminated, that conduct by the employer was “a demonstration of gender discrimination at work” under article 5 of the Labour Act.[1]She, therefore,asked the court to award her 4,446 Turkish liras (amounting to four months’ gross salary) in accordance with the said provision. On 5 July 2007, the Kocaeli 3rd Labour Court consolidated the two actions for (a) severance pay and unemployment compensation; and (b) compensation due to gender-based discrimination.
2.7On 14 September 2007, the Kocaeli 3rd Labour Court concluded that the termination of the contract had beenwithout a valid reason. Having examined the termination of contract statement dated 8 February 2006 and the statements of the parties’ witnesses, the Court established that the employer did not submit any concrete evidence regarding the author’s entering into “sexually-oriented relations with persons of the opposite sex”. The court accepted the author’s argument thatit was not possible to claimthat her actions such as “eating and coming to and leaving work together” with Mr. D.U. violated the business ethics which required an immediate termination of the work contract. As to the content of the complaint of a customer Ms. A.A. against the author, the Kocaeli 3rd Labour Court found that the witnesses had provided contradictory statements. The court concluded that given the author’s severance period, the termination of her employment was unjustified. The employer was ordered to pay severanceallowance and payments in lieu of notice to the author in the total amount of 15,295.04 Turkish liras, pursuant to the expert’s assessment of the premium payments made according to established business practice.
2.8In respect to the claim made by the author that her work contract had been terminated due to gender-based discrimination and that she, therefore, should be compensated pursuant to article 5 of the Labour Act, the Kocaeli 3rd Labour Court concluded that it was not possible to assert that the author was dismissed just on account of the fact that she was “female”. The fact that Mr. D.U. was still employed by the hairdresser’s shop was not enough to prove gender-based discrimination. It was equally not possible to find that the employer acted in breach of the equal treatment obligation as far as the author’s “emotional relationship” with Mr. D.U. was concerned. Whereas such a relationship was asserted to be the reason for her dismissal, it hadnot been proven by the employer nor accepted by the author. Although the author could claim compensation pursuant to another legal ground as a consequence of the above-mentioned defence of the employer, that attitude of the employer could not be considered contrary to the equality principle provided in article 5 of the Labour Act. The Kocaeli 3rd Labour Court reached this conclusion, having examined the way the author was dismissed; the events that took place prior to her dismissal;the statements of the parties’ witnesses; the use of plural form in the phrase “with persons of the opposite sex” in the statement, requesting the author to provide explanations; reference to the customer complaint as the reason for her dismissal; the fact that the author had denied having an “emotional and immoral” relationship with Mr. D.U. and the fact that the hairdresser’s shop required the employment of especially women.
2.9On 14 July 2006, the author also initiated criminal proceedings for libel against the manager of the hairdresser’s shop, Mr. M.A., and two other employees, who drew up the termination of contract statement indicating that the author had unethical behaviour by having sexuallyoriented relationships with persons of the opposite sex at the workplace. On 5 September 2007, the Kocaeli Chief Public Prosecutor issued an indictment for libel against the manager of the hairdresser’s shop, Mr. M.A., and two other employees, who drew up the termination of contract statement. The indictment was submitted by the author to the Kocaeli 3rd Labour Court as evidence. By its ruling of 1 April 2008, the Kocaeli 1st Magistrates Court found the manager of the hairdresser’s shop, M.A., and another employee guilty of libel, concluding that the witness testimony given in connection with the termination of contract statement of 8 February 2006 was entirely about the author’s private life.
2.10The authorfiled an appeal against the decision of the Kocaeli 3rd Labour Court before the Court of Cassation and argued that the said decision was contrary not only to the principle of equal treatment in the Labour Act but also to theobligations of Turkey under the Convention. In the application for appeal the author claimed that the reasons for her dismissal constitute gender-based discrimination and asked for the reversal of the Kocaeli 3rd Labour Court’s decision. On 2 April 2009, the Court of Cassation dismissed the appeal,without any reference to the author’s claims of gender-based discrimination under the Convention.
The complaint
3.1The author claims to be a victim of a violation of article 2, paragraph (a), of the Convention. Although the principle of equal treatment of men and women is guaranteed by article 5 of the Labour Act, neither the Kocaeli 3rd Labour Court nor the Court of Cassation applied this principle. The author adds that she has specifically claimed before the domestic courts that Turkey was a State party to the Convention and that, by virtue of article 90 of its Constitution, the Convention was part of the domestic law and should have been applied by the courts. They, however, disregarded the author’s arguments and ignored her evidence with regard to her claim relating to gender discrimination. Furthermore, the Court of Cassation failed to give any justification or explanation on why it dismissed her appeal.
3.2 The author further claims that she is a victim of a violation of article 2, paragraph (c), of the Convention, because the State party failed to protect her from gender-based discrimination, despite the existence of the gender equality principle in article 5 of the Labour Act.
3.3The author also alleges a violation of article 5, paragraph (a), of the Convention. Despite article 5 of the Labour Act, national courts still rule habitually with similar patterns from the past. Her claim concerning gender-based discrimination was ignored, the courts showed social prejudiceand did not challenge the fact that the morality and privacy of the author was questioned by her male employer because she was a woman, whereas the behaviour of male employees was never examinedin terms of morality. Moreover, whereas the illegitimate actions of the male employees were ignored, the alleged illegitimate actions of the author were considered as a valid reason for her dismissal, since the Kocaeli 3rd Labour Court concluded that the dismissal was unlawful exclusively because the employer did not submit any concrete evidence regardingthe author’s entering into sexuallyoriented relations with persons of the opposite sex.
3.4The author submits that she is a victim of a violation of article 11, paragraph 1 (a) and (d), of the Convention. Her employer tried to force her to sign a document stating that she had benefited from all her rights, so that she would not have been able to sue him. If not, he threatened to spread rumours that she had a relationship with other men. In this way, she was exposed to gender-based discrimination –“mobbing”– by the employer and the courts failed to address it and to provide her compensation for this. The principle of equal treatment has also been violated through the dismissal of a female employee for her alleged extramarital affair at work.
3.5Finally, the author claims a violation of article 1 of the Convention. She alleges that by tolerating violations of several provisions of the Convention, the State party did not meet its obligations under article 1 of the Convention.
State party’s observations on admissibility and merits
4.1By its submissions of 28 April 2011, the State party challenges the admissibility of the communication under article 4, paragraphs 2(b) and (c), of the Optional Protocol to the Convention. On the facts, the State party submits that, according to the employer, the author was often late for work and objected to fulfil some of her tasks. This situation, however, was tolerated by the employer until the day when one of the customers made a complaint. The author was requested to provide explanations in relation to this complaint. She did not respond to that request and decided not to come to work on the following days.
4.2The State party submits that the claim of a violation of article 2, paragraph (a), of the Convention is incompatible with the provisions of the Convention, manifestly ill-founded and not sufficiently substantiated, as the author made no reference in her communication to any legislative shortcoming and as the State party has introduced since late 1990s important legislation on women’s rights and gender equality. The State party specifically refers to the incorporation of article 2 of the Convention into article 10 of its Constitution in 2004.[2] It adds that the State party undertook an obligation not only to abstain from gender-based discrimination, but also to take all measures and to adopt policies necessary for women and men to have equal rights and instruments to enjoy them.
4.3The State party also submits that the claim of a violation of article 5, paragraph (a), of the Convention is incompatible with the provisions of the Convention, manifestly ill-founded and not sufficiently substantiated, as the author does not refer to any social and cultural pattern that the State party would have failed to take appropriate measures to modify. Therefore, there is no clear link between the author’s dismissal and a social and cultural pattern.