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Germany: Extraordinary dismissal without notice for defamation via WhatsApp

The plaintiff was employed by the defendant as a sales employee. Two days after the employee took up work, she went to a bar in her leisure time. A conversation developed with two acquaintances of the employee in which one of the acquaintances claimed that an employee of the defendant, who is the father of the managing director, was allegedly a convicted rapist. This allegation was untrue, as the plaintiff only learnt later in connection with her dismissal.

After the plaintiff had become aware of this allegation, she informed another colleague about the content of the conversation at the bar via WhatsApp. She particularly alleged the father of the managing director being a convicted rapist.

After the Labour Court ruled that the extraordinary termination without notice was invalid and the employment relationship was only terminated by ordinary termination one month later, the Regional Labour Court has now ruled that the extraordinary termination without notice was effective and the employment relationship therefore ended immediately.

Severe insults of the employer or of colleagues constitutes, depending on form and content, a considerable violation of honour for the insulted person and therefore usually justifies an extraordinary termination without notice. A reason for an extraordinary termination is particularly present, if the employee to be dismissed fulfils the offence of defamation according to Section 186 German Criminal Code (Strafgesetzbuch – StGB). However, the effectiveness of the dismissal does not depend on criminal law, but on whether the employer can still be expected to continue the employment relationship after considering the entire facts of the case.

The defamation according to Section 186 German Criminal Code does not presuppose that the offender knows about the untruth of the fact, which they claim. It is also not necessary that the widespread facts reach a larger number of persons. The plaintiff’s allegation that her colleague is a convicted rapist constitutes a defamation, which, moreover, is likely to humiliate the victim in public.

The present defamation cannot be justified for the perception of legitimate interest or any other reasons and is not protected by the right to freedom of expression, which is restricted by the German Criminal Code. Employees are generally allowed to criticise their employer in public – even by exaggerated statements. However, the protection of honour guaranteed by criminal law must be observed.

In the individual case, the employer’s interest in an immediate termination outweighs the employee’s interest in observing the notice period. The employment relationship did not even exist for three days at the time of the incident, which means the plaintiff was not protected under the Protection Against Unfair Dismissal Act (Kündigungsschutzgesetz – KSchG). Furthermore, the plaintiff’s allegation was likely to undermine the managing director’s position, since the untrue defamatory allegation related to his father.

The employer may in principle be criticised in public by its employees. Criticism does not automatically justify dismissals or other disadvantageous consequences for the employees. However, limits are reached where statements, criticism and allegations fulfil criminal offences or seriously violate the employer’s or other employee’s honour and reputation. In such cases, the employer can take legal measures from warnings to extraordinary termination without notice in order to protect its own interests. Additionally, the employer may even be obliged to intervene in the interest and in particular for the protection of its employees. Furthermore, the employer does not have to accept the undermining of the position of a superior.