LAG Baden-Württemberg: Dismissal for causing serious offence

Anybody who insults their employer or superiors on social networks ought to anticipate the possibility of being dismissed without notice. Having said that, this is ultimately decided on a case-by-case basis.

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: Employers and superiors do not have to put up with insults on social networks. Employment law stipulates that it is possible to give exceptional notice of dismissal for good cause. One such example of good cause is causing serious offence. This represents a severe breach of the obligation to consider the employer“s legitimate interests and thus justifies dismissal with immediate effect. That being said, whether dismissal is justified is a decision that is always made on a case-by-case basis, as demonstrated by a ruling of the Landesarbeitsgericht (LAG) Baden-Württemberg [Regional Labour Court of Baden-Württemberg] from June 22, 2016 (Az.: 4 Sa 5/16).

In the case in question, an employee had posted his doctor“s sick note for an injury on Facebook. A discussion ensued involving more than 20 participants. In the course of this, a superior of the employee on sick leave was apparently referred to as a „fettes Schwein“ [fat pig] using an emoticon. When the employer became aware of this, it issued exceptional notice of dismissal and, in the alternative, ordinary notice of dismissal.

Fortunately for the employee, the Landesarbeitsgericht rejected the dismissal. While the judges noted that seriously affronting a superior constitutes grounds for dismissal, they concluded after weighing up the interests that this was not necessary in this case. The Court stated that both ordinary and exceptional notice of dismissal for breaching a contractual obligation normally require a formal written warning to have been issued. It went on to say that this requirement only ceases to apply if it is evident that the employee would not change his behaviour even in response to a formal warning or it would be unreasonable to continue the employment relationship. This balancing exercise always needs to be carried out on a case-by-case basis. In the instant case, the Court took the view that the formal warning needed to have been issued first, as this would likely have been sufficient to point out to the employee that his conduct was unacceptable and he would have refrained from said conduct going forward. The employee“s long service and the social situation were also said to reflect well on the employee.

Dismissals are a common source of legal disputes. Employers have to be mindful of the relevant regulations to ensure that notice of dismissal is issued effectively. Lawyers who are versed in the field of employment law can advise on all matters pertaining to employment relationships.

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