If employees communicate via messengers such as WhatsApp and exchange the latest company news there, the content can also become relevant for termination. In a special case, the Baden-Württemberg State Labor Court (judgment of March 14, 2019, 17 Sa 52/18) had to rule on a termination that was pronounced because of a rash statement by an employee.
The employee of a cafe learned that the father of her boss, who also worked in the company, was a convicted rapist. She wrote this to a colleague via WhatsApp and also announced that she no longer wanted to work for her employer. The colleague should also stop working there. However, the employee did not know that this was not true. The father was not convicted of rape at all.
The colleague then arranged a meeting with the joint boss, in which his father also took part. Here she revealed to the two that the employee concerned had written to her that his father was a convicted rapist.
Thereupon the boss terminated the employment relationship with the employee concerned extraordinarily, alternatively properly. She took action against this with a dismissal protection suit and was also right in the first instance before the Stuttgart Labor Court (judgment of April 10, 2018, 24 Ca 1481/18). Your boss appealed to the Baden-Württemberg State Labor Court. The regional labor court conceded the decision of the Stuttgart labor court and agreed with the employer.
With the false assertion that the boss’s father was a convicted rapist, the employee complied with the criminal offense of defamation under Section 186 of the Criminal Code. This says:
“Anyone who asserts or disseminates a fact in relation to another, which is likely to make the same contemptible or to be heard in public opinion, will, if this fact is not demonstrably true, […..] fined.”
This means that the conditions for an extraordinary termination are given. Because the employee has seriously violated her contractual duty to be considerate and abused the trust placed in the consideration.
The state labor court dealt with the following questions in its decision:
Does the extraordinary termination also apply here even though there is no damage?
Yes. The court decided that material damage does not have to be present as a result of such a statement. For the acceptance of an important reason in the context of an extraordinary termination, it is sufficient that the act is unlawful. It does not have to have caused, even if only minor, damage.
Shouldn’t she have voiced the allegation directly to the employer or his father?
No, here too it is sufficient if such a factual assertion is “only” passed on to third parties. To accept defamation, the statement does not have to be made directly to the person concerned.
But it was a confidential message between two colleagues, does this not matter?
This also does not play a role here for the acceptance of defamation. The transfer in a 2-person chat already fulfills the requirement of dissemination according to § 186 StGB. In this respect, it does not matter for the termination whether the message was sent confidentially or not.
Can the employee invoke her freedom of expression?
That is not possible here. Because freedom of expression also has its limits: If the right to personal honor is violated, freedom of expression finds its limits there. Employees are allowed to criticize their employers, superiors and also the operational conditions. They can also express themselves exaggerated. However, this does not mean that personal protection of honor may be affected.
Shouldn’t the employee have been warned beforehand?
The regional labor court did not consider a previous warning to be necessary. In this case, a warning is unnecessary because the statement is a criminal offense. Employers do not have to accept this behavior in the case of such serious breaches of duty, which are also readily apparent to the employees.
Wrong statements can often constitute grounds for termination. The boundaries between false statements of fact and expressions of opinion can be fluid. In addition, the so-called whistblower problem often arises, i.e. when employees address misconduct by employers internally or in public and are to be sanctioned for this under labor law.
In this context, it is always important for employees to pay attention to what kind of statements they are and how they are to be classified legally, so that no legally permissible surprises arise, as in the present case.
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