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09-28-2022Article

Update Arbeitsrecht September 2022

Insulting a colleague as ‘bastard’ justifies ordinary dismissal without prior warning

LAG Hamm, Judgment dated 20. January 2022 – 18 Sa 645/21

The Regional Labour Court (LAG) in Hamm has ruled that insulting a colleague as a ‘bastard’ can justify an ordinary dismissal even without a warning.

Merits of the case

The plaintiff disputed the validity of a dismissal with notice by the defendant, her former employer. The defendant based the dismissal on grounds of misconduct due to the plaintiff insulting a co-worker as ‘bastard’.
The plaintiff, a married and mother of two children, has been working as a sales representative for the defendant since 2009. The defendant employed more than ten full-time equivalent employees. After the employment relationship initially went smoothly, the defendant issued the plaintiff several warning letters in 2018 and 2019. In one of these warning letters from May 2019, the defendant criticized, among other things, inappropriate behaviour of the plaintiff towards customers and co-workers: In that warning letter, the defendant explicitly requested the plaintiff to “refrain from any kind of derogatory statements towards or about colleagues, superiors or customers [...]" in the future.

On 14 December 2019, following a physical collision between the plaintiff and a colleague, an argument arose in the break room during which the plaintiff called her co-worker "bastard". After the altercation, the plaintiff tried several times to convince the defendant to discipline the colleague under labour law. In a letter dated 8 January 2022, the defendant finally terminated the employment relationship with the plaintiff effective as of 30 June 2020.

The plaintiff initially successfully brought an action for protection against dismissal before the Labour Court in Dortmund. According to the Labour Court, the misconduct did not constitute a severe enough breach of contract that it could justify dismissal without a prior warning letter, in particular since the dispute with the co-worker took place in of a private conversation and had not been noticed by customers. The defendant appealed. 

Decision of the LAG Hamm

The defendant's appeal was successful. The LAG ruled that the dismissal was valid and therefore the employment relationship between the parties had been terminated.
The LAG based its decision on the fact that the plaintiff had grossly violated her contractual secondary duties by insulting her work colleague as ‘bastard’.
According to the established case law of the Federal Labour Court (BAG), a serious breach of secondary contractual duties can justify dismissal for misconduct (in individual cases even summary dismissal). This also applies to grave insults of co-workers with a significantly defamatory character in terms of form and content. Such insults may constitute a serious breach of the duty to respect the legitimate interests of the employer (Section 241 (2) BGB). 

Pursuant to Section 241 (2) BGB, the employee is obliged to avoid disturbances of the harmony in the workplace. Further, the employer is responsible for ensuring the protection of the legitimate interests of its employees, i.e. in the present case the insulted co-worker. In the case of grave insults, the employee cannot invoke his right to freedom of speech under Article 5 (1) of the German Constitution, since freedom of speech is limited by the right to personal honour under Article 5 (2) of the German Constitution.
Regarding the balancing of the defendant's interest in dismissing and the plaintiff's interest in continued employment, the LAG focused decisively on the severity of the insult. Despite the length of the initially smooth employment relationship, the balancing therefore turned out in favour of the defendant. With the swear word ‘bastard’, the plaintiff had called the colleague a subordinate human being of illegitimate descent. This constitutes a serious defamation. Such a serious insult was not even remotely understandable in that situation, as there had only been a physical collision between the plaintiff and her co-worker.  The misconduct of the plaintiff had also caused consequences in the business operation of the defendant, in particular since the plaintiff had continued to fuel the conflict by continually insisting on disciplinary measures for the co-worker. 

Lastly, a prior warning letter was not required. According to the principle of proportionality, such a warning letter is not required if the breach of duty is so serious that the employer cannot be expected to tolerate it even at its first occurrence according to objective standards. Moreover, it should have been clear to the plaintiff at the latest after the warning letter issued in 2019 that the defendant regards insults among co-workers as breaches of contract and will not tolerate them under any circumstances, irrespective of whether the warning letter was up to scratch in formal terms. The letter already served its function to warn the employee as she could recognize what behaviour the employer expects and what misconduct the employer considers to be so severe that it constitutes a reason for dismissal from the employer’s point of view. 

Practical advice

Criminal offenses in or in connection with the employment relationship can easily constitute a reason for dismissal – and in some cases even summary dismissal. The decision of the LAG shows that this can already be the case with an insult. In particular, the severity of the insult must be considered. In the case of so-called ‘formal insults’, where the word in itself contains the insult with a significantly derogatory character, employers should always check whether dismissal is possible – even without a formal prior warning letter. 
Another striking aspect of the judgment is that employer chose to merely dismiss the employee with notice but refrained from summary dismissal. The reason for this is that at the time the notice of termination was issued, the two-week period between obtaining knowledge of the reason for dismissal and the dismissal itself had already expired. This is an avoidable mistake: If there are significant breaches of contract, employers must act quickly to clarify the facts, possibly consult the works council and make a decision on whether they want to dismiss. Otherwise, the only remaining option is ordinary dismissal with notice.
 

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