Update Employment Law March 2021
Dismissal due to a report to the authority about the violation of quarantine regulations
(ArbG Dessau-Roßlau August 12, 2020 - 1 Ca 65/20)
Back in the spring of 2020, the extraordinary dismissal of a "Corona whistleblower" made headlines in the news because she had previously shared a video online that showed low distance between Tönnies employees eating in the company cafeteria. The employee was employed by a catering company that supplied food to the Tönnies cafeteria. The employee had challenged the dismissal in court and finally reached a court settlement.
Now the Dessau-Roßlau Labor Court had to decide another "Corona whistleblower case".
Due to a general decree issued by the district to protect or prevent the spread of the coronavirus SARS-CoV-2 according to the Infection Protection Act, the population of certain districts of this district was obliged to stay exclusively in their homes or on their own residential property. The only exceptions to this rule were people working within these districts at their place of work and on their way to work. It was forbidden - with the exception of specially named persons - to leave the districts. The employer's premises were located outside this quarantine zone. Both the managing director and the foreman of the company lived within the quarantine zone. Both left the quarantine zone and appeared in the place of business.
After the employee who later filed the complaint discovered the foreman at the place of business, he called the local police station to inquire whether leaving the quarantine zone was permitted. When the foreman overheard parts of the phone call, a heated argument ensued, which later continued with the managing director. The managing director had himself tested for Corona the next day, and the test came back negative. When the employee encountered the managing director again at the company three days later, he immediately left the place of business. He contacted the district by e-mail on the same day, describing what he saw as a violation of quarantine regulations and asking for an assessment and, if necessary, for legal action to be taken. The district forwarded the e-mail to the police, who initiated an investigation against the general managermanaging director and the foreman. After the managing director learned of the initiation of the investigation procedure, he accused the employee of informing the police without first contacting him and terminated the employee without notice, or in the alternative, with notice.
Decision of the Dessau-Roßlau Labor Court
The Dessau Labor Court found both the extraordinary and the ordinary termination to be invalid.
- Fundamental points: Any employee who discovers or suspects wrongdoing or even criminal acts on the part of his or her employer is caught in an area of tension: On the one hand, it is socially desirable to point out wrongdoing.
On the other hand, an employee also has a duty of loyalty to his employer. It would be contrary to this if the employee were to bring every alleged grievance into the public eye and damage the company's reputation in this way. The economic consequences of such indiscretions can naturally be immense.
In order to do justice to this area of tension and the interests of employer and employee in such situations, case law has established the following principles: If the employee files a criminal complaint against his employer, this may constitute good cause for termination. The decisive factor is the motivation for the report and whether the report can ultimately be regarded as a disproportionate reaction by the employee to the employer's conduct.
In its ruling, the Dessau-Roßlau Labor Court once again showed in which groups of cases a criminal complaint filed by the employee against the employer can justify extraordinary termination according to case law, namely if the employee:
- knowingly or recklessly makes false statements when filing a criminal complaint,
- makes the report solely to harm the employer or acts out of revenge, or
- leaves a possible internal settlement of the grievance untried.
The BAG has ruled in the so-called "whistleblower" cases that there is no general priority of internal clarification. It must always be weighed up whether the employee's duty to consider the interests of the employer must take a back seat or not. An internal report is unreasonable for the employee, for example, if it concerns serious criminal offenses or criminal offenses committed by the employer himself or if the employee would otherwise expose himself to criminal prosecution (Section 138 of the German Criminal Code). The same applies if the prospects of success of an internal attempt at clarification are to be classified as low. On the other hand, it is generally incumbent on the employee to inform his employer in advance if criminal acts committed by an employee are involved, in particular in the case of damage against the employer himself.
- The present case: In the opinion of the Labor Court, none of the above-mentioned groups of cases existed in the present case.
The employee had accurately stated in his e-mail to the county that the managing director and the foreman had visited the business located outside the quarantine area, even though they resided in the quarantine area. Thus, he had not knowingly or recklessly made any false statements.
There were also no indications that the employee wanted to harm the employer or was acting out of "revenge". Rather, his goal was to enforce the quarantine regulations resulting from the general decree of the district for reasons of infection protection. He could and had to assume, based on the quarantine regulations published in the press, that the managing director was not permitted to leave his place of residence under the general order of the district. He rightly feared that a violation of this rule could pose a considerable risk of infection for him and the other employees of the company.
The employee was also not obligated to first influence the managing director, because - in the opinion of the labor court - it was precisely not a matter of an internal maladministration, but rather a violation of an official general order. A further complicating factor was that the managing director himself admitted in the proceedings that he was completely unaware of the regulatory content of the district's general ruling and its legal implications, so that he would not have been in a position to answer the questions about the scope of the quarantine regulations that were open from the employee's point of view. Even if there had been an in-house grievance, an in-house attempt at clarification would have been unreasonable due to low chances of success. The negative Corona test of the managing director also did not play a role for the labor court, because a one-time test does not offer a conclusive result and he could have been infected immediately afterwards.
In the opinion of the Dessau-Roßlau Labor Court, the violation of regulations under public law in the form of the general order does not constitute internal maladministration. The quarantine order of the residents of the specific districts had no operational reference.
This decision could be relevant in particular if employers do not comply with the new Corona-ArbSchV and the employee - without first addressing the employer and attempting to remedy the situation - turns to the relevant authorities because of a violation of the Corona-ArbSchV. It remains to be seen whether the above-mentioned principles also apply if the regulation under public law - such as the Corona-ArbSchV - has, in particular, operational measures as its regulatory standard.
Germany must transpose the Whistleblowing Directive into national law by the end of the year. The draft bill for an implementation law can now be viewed. With the entry into force of a Whistleblower Protection Act, which is intended to protect "whistleblowers" from sanctions such as dismissals, transfers, etc., a movement in case law can be expected.