The role of the works council and special protection against dismissal
Works councils have the task of representing the interests of employees vis-à-vis the employer. The fact that they also serve as a critical voice with regard to the employer is part of that role.
The case before the Saxony State Labor Court (LAG) also concerned critical statements made by a works council and a termination (without notice) as a consequence.
Critical statements on video in front of the company logo
A works council member had allegedly filmed the chairperson of the works council secretly and without their permission during a works council meeting. The employer took this as an opportunity to dismiss the works council representative without notice for the first time.
He regarded his dismissal as a political move, and promptly reacted by filming a video in front of the company premises in which he and his lawyer issued this statement. Neither of the two spared in their criticism of the employer. The fact that the employer’s logo could be seen in the background was no coincidence.
He published the video on YouTube and shared the link on his Facebook profile with the title “Political dismissal?” and the subtitle: “Conspiracy below the belt. Is company XY trying to dismiss the works council with lies?”
The employer’s reaction to the strongly pointed statements in the video, which were all expressed as questions: another termination without notice.
The works council also took legal action against this dismissal and was successful.
No lies, just sharply worded statements
In his view, he had neither violated an official duty as a works council member nor a general contractual duty as an employee. He did not regard this as due cause for extraordinary termination for a compelling reason (Section 15 (1) of the German Protection Against Dismissal Act (KSchG), Section 626 (1) of the German Civil Code (BGB)).
The court shared the same opinion.
On one hand, the works council had not made any untrue statements about the employer in the video. He simply asked sharply worded questions in the video. These were expressed as an opinion, namely a subjective assessment of external events, and not a “false statement of fact”.
This is evidenced by the fact that “… both the headline and the subtitle of the video were marked with a question mark”. According to the court, this is a clear indication “…that a factual assertion is not being made but rather a question is being posed.”
Furthermore, in the court’s opinion, this was supported by the fact that the works council member had identifiably posted on his private Facebook account as a member of the works council.
Lastly, the court did not regard the video to be so effective in terms of publicity that it would justify the dismissal of a works council member. It was true that the video did not cast the employer in a positive light. However, given that the video only received little attention, the video had only caused insignificant damage to the company’s reputation and no lasting damage to the company’s right of personality (Section 2 of the Basic Law for the Federal Republic of Germany (GG)).
In other words, the employer would have to live with this form of communication from the works council and continue to employ the man after more than 30 years with the company following this incident.
Summary of the key facts:
- Due to the special protection against dismissal, dismissing works council members is subject to extremely demanding requirements.
- Critical statements about the employer – even if they are made publicly via social media – are generally insufficient grounds for dismissal (without notice).
- With regard to the critical statements, it depends on whether the statement is an opinion or an assertion of false facts and the scope of the damage to the company’s reputation caused by the statement.
