While it is of course permissible to criticise one’s employer, excessively abusive criticism can lead to termination of one’s employment contract. It can even potentially justify termination without notice.
GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: While it may be permissible to direct objective criticism at one’s employer, crude insults, defamatory statements or abusive criticism might well give rise to termination of one’s employment contract under employment law. These instances could even conceivably result in termination without notice.
At least that was the decision of the Landesarbeitsgericht Hamm (Regional Labour Court of Hamm) in its ruling of October 10, 2012 (Az.: 3 Sa 644/12). In that case, an apprentice had referred to its employer, among other things, as a “slave-driver & exploiter” (“Menschenschinder & Ausbeuter”) on social networks. The firm, which normally employed less than ten workers, subsequently dismissed the apprentice without notice. The latter then brought a legal action against the dismissal.
The apprentice did not consider the dismissal to be justified, claiming that he had not mentioned the firm by name and that his remarks were meant to be exaggerated and funny. He went on to say that it was clear in the context of his whole profile on the social network that his comments were not meant to be taken seriously. Furthermore, he argued that his criticism of the company’s social and economic conditions were covered by the fundamental right to freedom of expression, and he should in any case have been issued with a formal written warning before being dismissed.
Whilst his claim was successful at first instance, the LAG Hamm came to a different conclusion. The LAG held that the apprenticeship had been effectively terminated and there was good cause for the dismissal without notice. The Court clarified that there is good cause if it would no longer be reasonable to continue the employment relationship.
Crude insults such as those featured in the instant case, which due to their form and content amount to a significant slander against those concerned, represent a serious infringement by an employee of his duties arising from the employment contract and are by themselves capable of justifying an extraordinary and immediate termination of said contract. The same applies to an apprenticeship.
Termination is not in fact effective in each and every case, since various regulations need to be observed when terminating employment contracts. Lawyers who are experienced in the field of employment law can assess the effectiveness of notices of termination.
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