Extraordinary termination - libel and slander via WhatsApp

If an employee spreads a rumor via WhatsApp that a colleague has been convicted of rape, this may justify dismissal without notice. It has now been confirmed by Baden-Württemberg State Labor Court (March 14, 2019 - 17 Sa 52/18) that such slander may justify dismissal without notice on serious grounds.

Facts of the case

The commercial employee employed by the defendant since February 15, 2018 prevailed in first instance before Stuttgart Labor Court (Case: 24 Ca 1481/18) against a dismissal without notice within the probationary period. 

The plaintiff’s probationary period was agreed to be six months, during which a two-week ordinary notice period applied. On February 17, 2018, two days after starting her employment, the plaintiff was informed in a conversation with acquaintances after work that another of the defendant’s male employees was alleged to be a convicted rapist. The plaintiff subsequently communicated this information via WhatsApp to a female colleague who had already worked for the defendant for several years. In the conversation between the female colleagues, it was argued that the allegedly convicted colleague was a rapist “all of L. does not want to have anything to do with anymore.” In the course of the conversation, the plaintiff persuaded her colleague that she should no longer work for the company and should look for another job instead.

Decision

The defendant who lost her case in the lower instance prevailed in second instance before Baden-Württemberg State Labor Court. The State Labor Court considers the dismissal under Section 626(1) Civil Code to be justified, since the defendant could not reasonably be expected to continue the employment relationship until the expiry of the notice period, taking into account all circumstances of the individual case and weighing the interests of both parties to the employment contract. This was argued in consideration of the plaintiff’s conduct constituting the criminal offense of libel and slander pursuant to Section 186 Penal Code, which requires the dissemination of defamatory facts to at least one third party where the perpetrator does not have to be aware of the allegations to be true. The State Labor Court considered the allegedly confidential contact with the colleague, whom she had only known for two days, as constituting this criminal offense. Consequently, there are grounds justifying the dismissal without notice “per se”.

The State Labor Court’s weighing of interests was also at the plaintiff’s disadvantage. Her right to express her opinion freely and the concern for her own welfare (including that of her colleague) could not be invoked against the right to the personal honor of the individual concerned.

In addition, the State Labor Court considered that the plaintiff had only been employed in the defendant’s company for two days. She therefore did not deserve the “benefit of the doubt” that might justify contacting the wrong person. A warning was also unnecessary in this case.

Note for use in practice

Employees spreading rumors may be sanctioned for their actions not only under criminal law, but also under employment law. The offense of libel and slander therefore justifies ordinary, if not extraordinary, dismissal. Article 5 of the Constitution protects the disseminator only within the scope of general statutory provisions and not against criminal offenses under Sections 185 et seqq. Penal Code. In such cases, warnings are generally not necessary if employees could not (seriously) expect that their conduct would be tolerated by the company.