Hessian Regional Labour Court, 04.09.2010, Ref.: 3 Sa 243/10
Termination is a unilateral declaration that cancels the employment relationship for the future. In principle, the employer can give notice of ordinary termination (with notice) or extraordinary termination (without notice).
Depending on the reason for dismissal, a further distinction is made between dismissals for operational reasons, behavioural reasons or personal reasons.
In the case of a dismissal for operational reasons, there must be urgent operational requirements. Such requirements include, for example, a poor order situation for the employer, a permanent decline in turnover or a change in production processes by the employer. As part of the dismissal for operational reasons, the employer must make a so-called "social selection". This means that he must dismiss the employee who is least worthy of protection. The age, length of service, disabilities or maintenance obligations of the employees in question must be taken into account.
In the case of dismissal for personal reasons, the grounds for dismissal lie in the person of the employee. The most important case of dismissal for personal reasons is if the employee falls ill. However, strict requirements must also be met in this case. For example, a long-term illness requires a negative health prognosis.
Dismissal for conduct-related reasons is given if the employee's behaviour has provided the reason for no longer wanting to employ them. Reasons for dismissal for conduct-related reasons include, for example, unexcused absences from work, late arrivals, unauthorised holiday departures, assaults, insults, etc. In the case of dismissal for behavioural reasons, the employer must always ensure that proper warnings are issued in advance.
In the above-mentioned decision, the Hesse Higher Labour Court had to rule on a dismissal for conduct-related reasons. The employee had literally stated in court: "The defendant is lying through her teeth. The way she treats people makes me feel like I'm in the Third Reich"
Facts of the Case:
At the labour court hearing, the employee compared his employer's behaviour to the Third Reich
After more than 30 years of employment, a 47-year-old driver filed a lawsuit against his employer for dismissal. At the chamber hearing before the labour court, he stated in the presence of the employer and his legal representative: "The defendant is lying through her teeth. The way she treats people makes me feel like I'm in the Third Reich".
The latter then cancelled again
After the employer had to reinstate the employee, the employer dismissed the employee again without notice at the end of February 2007 on the basis of the statement made. After the employee failed in his renewed action before the labour court, he lodged an appeal with the Hessian Higher Labour Court.
Appeal judgement of the Hessian State Labour Court
The Hesse Higher Labour Court also saw the settlement as grounds for termination without notice
However, the Hesse Higher Labour Court also considered the dismissal to be effective. Such a gross insult to the employer and/or its agents or representatives could in itself justify an extraordinary termination without notice.
The fundamental right to freedom of expression would regularly have to take a back seat if the statements were an attack on human dignity or a formal insult or vilification. The comparison of company conditions and procedures with the National Socialist terror system and even more so with the crimes committed in concentration camps generally constitutes good cause for dismissal.
A comparison with the methods used during the Nazi era is grossly offensive
Equating even the most controversial operational processes and comparing the employer or the people acting on its behalf with the crimes committed by National Socialism and the people who committed these crimes constitutes a gross insult to the persons addressed and at the same time a trivialisation of the injustice committed during the fascist era and a mockery of its victims. Such a statement regularly implies that the employees of the employer are to be equated with compliant henchmen under the Nazi regime. The dismissed employee had also missed the opportunity to retract his vituperative criticism immediately or at least later on the advice of the chairman of the chamber.
The fact that the plaintiff had already insulted the Hessian State Labour Court as "corrupt" and described it as "worse than the communists" in an earlier legal dispute with his employer in 2004 was also of significance for the overall assessment.
Source: Hessian Regional Labour Court
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