In private chats, people often write something without giving it much thought. From time to time, statements are made which the employer does not like and which it is better not to hear. But what happens if the employer notices such a remark and issues a notice of termination because of these remarks in private chat – for example because the remark contains derogatory remarks about superiors, employees or customers – ?
The Berlin-Brandenburg Regional Labor Court had to deal with this question (ruling dated July 19, 2021, file no. 21 Sa 1291/20). The plaintiff was the technical director of a non-profit association for refugee aid, who was terminated because of private comments on private chat. The court declared the dismissal invalid because of comments made in private chat – nevertheless, it terminated the employment relationship against payment of severance pay.
Find out everything you need to know about this ruling in this post!
Facts
The association, which is mainly active in refugee aid, learned in the course of the dismissal of another employee that the technical manager and two other employees had made “inhumane comments about refugees” and “disparaging comments about helpers”. The association then terminated the employment relationship with the technical manager with notice.
The terminated technical manager subsequently brought an action for protection against dismissal. This action was upheld before the LAG for the following reasons:
Confidentiality of communication
The LAG declared the termination invalid, as there was no breach of duty justifying the termination. First, the Regional Labor Court evaluated the status of the private chats. In principle, the statements made could be used in court, but they did not justify dismissal. In support of this, the court states that the communication was confidential. The chat falls under the protection of the general right of personality, as it is
- had taken place in a very small circle (three people),
- had been written with the private cell phone and
- a transfer had not been intended.
Statements have no influence on suitability for the job
The judges ruled that this statement would not result in a lack of suitability for the job. As a technical manager, the dismissed person was not subject to any special duties of loyalty. The reason given for this was that, as technical manager, he had no direct supervisory duties. In addition, according to the court, the statements did not show a lack of loyalty to the constitution. This is mandatory for employees of an association that is part of the public service, he said.
Action for protection against dismissal successful – but still no further employment
Even if the termination was not effective, the LAG dissolved the employment contract at the employer’s request in return for payment of severance pay (so-called severance pay). “The prerequisites for an exceptionally possible judicial dissolution of the employment relationship were met in this case. It was not to be expected that the cooperation would serve the company’s purposes within the meaning of § 9 of the Austrian Unfair Dismissals Act. Since the serious statements had become public knowledge, the association could no longer act credibly towards refugees if this technical manager continued to be employed.”
Conclusion: Termination because of statements in private chat is only rarely possible
The decision of the Berlin-Brandenburg Regional Labor Court is consistent and in line with rulings already handed down by other regional labor courts. Despite the seriousness of the accusations made against the employee, the decision of the Berlin-Brandenburg Higher Labor Court makes clear the importance of general personal rights – also in the area of labor law – and is therefore to be welcomed.
My tip: If you have received a notice of termination, you must file an action for protection against unfair dismissal with the competent labor court within a period of 3 weeks from receipt of the notice of termination in accordance with § 4 KSchG – even if the notice of termination is obviously invalid. If the deadline is not met, legal action against the termination can only be brought as an exception.
Severance pay is a matter of negotiation
A claim to severance pay exists only in exceptional cases. In principle, this is purely a matter of negotiation. It is a one-time (voluntary) extraordinary payment that an employee receives from his or her employer upon termination of employment as compensation for the loss of the job and the associated earning potential.
Legally, there are exceptions where a severance payment is mandatory for the employer:
- In case of termination of the employment contract and determination by the court (so-called termination indemnity)
- In case of disadvantage compensation (if there was no negotiation with the works council)
- In the case of severance pay for operational reasons in the form of social compensation
Amount of severance pay
There is no fixed rule for the amount of severance pay. It regularly depends on the bargaining position of the employee. In this case, it is recommended to be represented by a labor lawyer in the matter of negotiation. This person can best find out whether the termination was unlawful and thus obtain a comparatively higher severance payment for you.
