Termination without notice due to a WhatsApp message?

Created by Nina Senninger | |  Labor Law

The Berlin District Court’s decision in the matter Renate Künast vs. Facebook shows once more that insults, slander, and defamations are a daily occurrence in times of social media and that the victims cannot – at least not successfully – defend themselves. This may also become an issue in work relationships.

In this context, however, the Regional Labor Court of Baden-Wurttemberg (17 Sa 52/18) took rigorous action. However, the circumstances were a little different from the case of Ms. Künast: The plaintiff, born in 1987, was hired by the defendant (employer) in mid-February 2018. Two days after commencement of the employment, the plaintiff met, in her leisure time, with acquaintances in a café. Those friends mentioned that a colleague – the father of the defendant’s managing director – was allegedly a convicted rapist. At that time, the plaintiff did not know that this was not true.

Subsequently, the plaintiff sent a WhatsApp message to her colleague whom she met for the first time upon commencement of her employment and told her, in particular, about the alleged rape. Therefore, she no longer wanted to work for the defendant and recommended her colleague to terminate her employment. Such colleague, who had been employed by the defendant for several years, informed the defendant’s managing director about such communication on the same date; thereupon, the managing director extraordinarily terminated the employment without notice.

The Regional Labor Court ruled that the termination was justified. The plaintiff had communicated, through WhatsApp, the objectively incorrect statement that an employee was a convicted rapist. In doing so, the plaintiff had circulated a defamatory statement suited to debase the affected person in the public opinion. Therefore, the requirements for defamation had been fulfilled. The fact that the rumor had been confidentially disclosed through WhatsApp to only one other person was irrelevant.

The plaintiff cannot rely upon her right to freedom of expression. Even though employees are allowed to criticize – also publically – their employer, supervisor and the operational circumstances and to exaggerate their criticisms, they must observe protection against defamation under criminal law.

The plaintiff cannot claim that her behavior was justified, in particular in order to protect her legitimate interests. Any statements merely satisfying the delight in gossip, human curiosity and the craving for sensations do not serve the protection of one’s legitimate interests.

Even the concern about one’s own and a colleague’s wellbeing does not justify the dissemination of rumors, as the dissemination of a rumor per se is not suited to improve one’s own safety or even the perceived feeling of safety.

Practical tip

In daily business, rumors play an important role. Not least due to social media, however, the rumor mill can become a risk for employees. Employers often gain knowledge about their employees’ negative comments and such comments are easier verifiable. This makes it easier for employers to enforce dismissals on the grounds of conduct in such cases. Therefore, employers should seek legal advice in such cases in order to be able to quickly react and to effectively terminate an employment (without notice) even without a prior warning letter, if applicable.

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