Update Employment Law October 2023
Dismissal of a teacher because of a "vaccination makes you free" video
LAG Berlin-Brandenburg 15 June 2023 - 10 Sa 1143/22
In its judgment of 15 June 2023 (Case No. 10 Sa 1143/23), the Berlin-Brandenburg Regional Labour Court found that the dismissal of a teacher who had uploaded a YouTube video showing a picture of the gate of a concentration camp with the inscription "Impfung macht frei" (Vaccination makes you free) was invalid. However, it granted the motion for termination filed by the Land Berlin and terminated the employment relationship existing between the parties against payment of severance pay in the amount of 72,000.00 euros, as the Land Berlin could not reasonably be expected to continue the employment relationship with the teacher due to the video.
A. The facts of the case
The plaintiff had been employed by the defendant Land Berlin as a teacher since 2008. He regularly published videos and other posts on YouTube and Telegram.
In July 2021, the plaintiff published a video on YouTube in which he criticised the vaccination policy of the Federal Republic of Germany. The video showed the gate of a concentration camp at the beginning, on which the original inscription of the gate "Arbeit macht frei" ("Work makes you free") was replaced by the inscription "Impfung macht frei" ("Vaccination makes you free"). Previously, the plaintiff had urged his students to follow his YouTube channel and had introduced himself in his other YouTube videos as a teacher from Berlin, for which he had already been warned in January 2021. Subsequently, the defendant Land consulted the staff council on the intended termination and gave it the screenshot of the video's opening image with the concentration camp and the inscription "Impfung macht frei" (Vaccination sets you free) as a reason for termination. In August 2021, the defendant Land Berlin then terminated the employment relationship with the plaintiff without notice and, in the alternative, with due notice as of 31 March 2022, on the grounds that the video equated the state's promotion of a willingness to be vaccinated during the pandemic with National Socialist injustice and the system of concentration camps, thus glorifying the injustices of the National Socialists and disregarding their victims. The plaintiff, on the other hand, took the view that the publication of the video did not constitute a breach of duty under his employment contract, as it was a purely private video without any connection to his employment relationship, in which he expressed sharp criticism of the vaccination policy of the federal government, with the consequence that the video was protected by the freedom of opinion and art under Article 5 of the Basic Law (GG).
In July 2022, the plaintiff published another video on his YouTube channel in which he expressed that "the totalitarian systems of Stalin, Mao and Hitler together [had] not caused as much suffering and death as the Corona syringe coercion". Thereupon, the defendant Land Berlin terminated the employment relationship between the parties again with extraordinary notice and, in the alternative, with ordinary notice. With regard to this second video, the plaintiff was of the opinion that it was merely an angry statement which contained exclusively his personal opinion and could not be attributed to the defendant Land as employer.
The plaintiff brought an action for unfair dismissal against both dismissals by the defendant. In the event that the ordinary notices of termination were invalid, the defendant Land alternatively requested that the employment relationship be terminated against payment of a severance payment of approximately 16,000.00 euros.
The Berlin Labour Court dismissed the action and considered the first extraordinary dismissal to be effective. The first video constituted an inadmissible trivialisation of the Holocaust and was therefore no longer protected by freedom of opinion and art. The defendant Land could therefore not be expected to continue employing the plaintiff. The plaintiff appealed against this decision to the Berlin-Brandenburg Regional Labour Court.
B. The decision of the Berlin-Brandenburg Regional Labour Court
The plaintiff's appeal was successful to the extent that the Regional Labour Court found that the dismissals were invalid. Nevertheless, the Regional Labour Court terminated the employment relationship existing between the parties on 31 March 2022 against payment of a severance payment in the amount of 72,000.00 euros.
I. Ineffectiveness of the terminations
The reason for the invalidity of the dismissals was the incorrect hearing of the staff council. The staff council had not been informed comprehensively by the defendant Land, but only about individual aspects of the allegations raised in the legal proceedings, in that it had only been presented with the screenshot of the entrance image of the first video and given as a reason for dismissal. The defendant Land also did not inform the staff council of what it saw as the concrete relationship of the plaintiff's statements to his employment relationship.
Pursuant to section 128 of the Federal Personnel Representation Act (BPersVG), the employer must inform the staff council of the reasons which, from its subjective point of view, justify the dismissal and are decisive for its decision to terminate the employment relationship. The employer must describe the facts from which the decision to terminate the employment relationship is derived in such a way that the staff council can examine the validity of the reasons for termination without having to conduct additional research of its own. If the employer does not inform the staff council of objectively important facts because he does not want to base the termination on them or does not want to base it on them at first, the hearing is proper, since an incomplete communication of the reasons for termination only when objectively assessed does not lead to the defectiveness of the hearing and invalidity of the termination according to section 128 of the Federal Personnel Representation Act (BPersVG). However, aspects essential for the dismissal which were not communicated to the staff council constitute an incomplete and thus defective hearing and may therefore not be used in the proceedings for protection against dismissal (BAG judgement of 24 March 2011 - 2 AZR 790/09).
As long as it could not be established on the basis of facts, to the exclusion of other possible interpretations, that the plaintiff's sole aim in his videos was to trivialise the injustices and the politics of National Socialism with their effects on the victims of National Socialism, the statements made by the plaintiff in his videos were covered by the fundamental right of freedom of opinion under Article 5.1 of the Basic Law (GG). It was true that the image of the concentration camp used by the plaintiff was not only distasteful, but also an unspeakable, completely inappropriate comparison, which cast considerable doubt on his suitability as a teacher. However, the plaintiff had ultimately drawn a comparison between the Federal Republic's advertising at the time of the pandemic for vaccination and the system of concentration camps under National Socialism. Although the videos represented a massive trivialisation of the injustices and policies of National Socialism, they were equally to be regarded as a protected expression of opinion within the meaning of Article 5.1 of the Basic Law (GG). For even exaggerated, completely disproportionate or even abusive criticism was protected by the fundamental right to freedom of expression. Outside school, the expressions of opinion of teachers were not subject to any other protection of fundamental rights than the expressions of opinion of other persons not working as teachers.
II. Merits of the application for dissolution
However, the Regional Labour Court held that the motion for dissolution filed by the defendant Land was well-founded. The defendant Land could not reasonably be expected to continue the employment relationship with the plaintiff because of the statements in his YouTube videos. Therefore, the Regional Labour Court terminated the employment relationship existing between the parties pursuant to §§ 9 and 10 of the Protection against Dismissal Act (KSchG) against payment of a severance payment in the amount of EUR 72,000.00 as of 31 March 2022.
C. Practice Note
The Regional Labour Court is to be agreed that the fundamental right of freedom of opinion as a central component of a democratic constitution basically applies to everyone.
However, caution is required in interpreting the ruling:
The Regional Labour Court primarily regards the incorrect hearing of the staff council as a reason for the invalidity of the dismissals. Due to the defective hearing of the staff council, the plaintiff's claim that his videos were a criticism of the federal government's vaccination policy and thus ultimately a statement of opinion could not be refuted with the necessary certainty.
The plaintiff's statements are therefore in principle very well suited to justify a termination of the employment relationship. The Regional Labour Court itself concedes this and therefore considers a continuation of the employment relationship to be unreasonable for the Land.
If the staff council had been fully consulted, the first dismissal might have been successful.