Hessian Regional Labour Court, 23.08.2017, Ref.: 6 Sa 37/17
The Dismissal Protection Act is a law that restricts the freedom to terminate employment contracts in favour of the employee. It contains various protective mechanisms to protect employees from arbitrary decisions by the employer. § Section 15 of the KSchG stipulates when a dismissal is generally inadmissible. Paragraph 3 stipulates that the dismissal of a member of an election committee is inadmissible from the time of their appointment, the dismissal of an election candidate from the time of the nomination of the election proposal, in each case until the announcement of the election result, unless there are facts that entitle the employer to dismiss for good cause without observing a notice period and that the consent required under Section 103 of the Works Constitution Act or under staff representation law has been obtained or has been replaced by a court decision. Within six months of the announcement of the election results, termination is inadmissible unless there are facts that entitle the employer to terminate the contract for good cause without observing a notice period; this does not apply to members of the election committee if it has been replaced by another election committee by a court decision. The inadmissibility of such a dismissal does not apply to dismissal for good cause in accordance with Section 626 BGB.
In the following case, the Hessian Higher Labour Court determined that the secret recording of a staff interview is in principle suitable to justify both an ordinary dismissal for conduct-related reasons and an extraordinary dismissal "per se". In this context, the criminal assessment is not decisive. The decisive factor is the violation of the employee's duty to consider the legitimate interests of the employer in accordance with Section 241 (2) BGB associated with this behaviour.
Initiation of Legal Proceedings
This legal dispute concerned the continuation of an employment relationship, the removal of warnings, the continued employment of the plaintiff and the issue of an interim reference. The plaintiff had been employed by the defendant since 1 June 1990 and was warned and ultimately dismissed without notice due to several incidents, in particular insulting comments and a secret audio recording of a staff meeting. The plaintiff filed an action for unfair dismissal, which was dismissed. The Labour Court and the Regional Labour Court ruled in favour of the defendant.
Reason for cancellation and warnings
The plaintiff was initially warned on 25 November 2015 because he had referred to colleagues as "low-performer burnout and lazy dung beetles" in an email. A further warning was issued due to an incident on 20 February 2016 in which the plaintiff allegedly called two female colleagues "lazy pigs" and threatened another colleague. These warnings were discussed by the employer in a staff meeting on 17 March 2016, during which the plaintiff secretly recorded the meeting.
Secret recording of the staff appraisal
The decisive reason for dismissal was the secret recording of the staff interview by the plaintiff, which the labour court deemed to be a serious breach of the duty of consideration under the employment contract in accordance with Section 241 (2) BGB. The court stated that the recording of a conversation without the knowledge of the parties involved violated the general right to privacy. Through this recording, the plaintiff had violated the right of the parties to the conversation to preserve the impartiality of the spoken word, as stipulated in Art. 2 Para. 1 in conjunction with Art. 1 Para. 1 GG. Art. 1 para. 1 GG.
Legality of the cancellation
The Labour Court confirmed the validity of the termination without notice in accordance with Section 626 BGB. It stated that the secret recording of a staff appraisal was in principle sufficient grounds for extraordinary dismissal, particularly if there were no grounds for justification. The plaintiff argued that he had not known that the recording was unauthorised and had only found this out afterwards. The court did not accept this, as the plaintiff should have informed himself beforehand. Even the fact that the plaintiff had visibly recorded the conversation on his smartphone did not change the secret nature of the recording, as the participants in the conversation were not informed of this.
Weighing of interests and judgement
The court found that the plaintiff's many years of employment and his age were not sufficient to influence the balancing of interests in his favour. The severity of the breach of duty caused by the secret recording was so serious that a continuation of the employment relationship was unreasonable. The plaintiff's accusations against the defendant that it had unlawfully suspended him also did not change the legality of the dismissal. The court emphasised that the plaintiff did not have the right to secretly record staff meetings in order to assert claims against the defendant.
Conclusion and dismissal of appeal
The Regional Labour Court agreed with the judgement of the Labour Court and dismissed the plaintiff's appeal. It confirmed that the extraordinary dismissal was effective and that the plaintiff was neither entitled to continued employment nor to the removal of the warnings or the issue of an interim reference. The secret recording of the staff interview constituted a serious breach of trust that made it impossible to continue the employment relationship.
Source: Hessian Regional Labour Court
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