An employee was dismissed with immediate effect because he had published in-house information on his Facebook account. In the current decision on this case, the Austrian Supreme Court (“OGH“) confirmed that indiscrete Facebook posts may justify a dismissal (Decision by the Supreme Court, dated 27.11.2014, 9 ObA 111/14k).
Cause of action
The plaintiff was employed with the defendant – a bank – as head cashier. In connection with the unsolved disappearance of the amount of EUR 15,000 at the defendant’s site the employer terminated his employment by giving ordinary notice and put him on garden leave. During the garden leave, the plaintiff was informed by his neighbors about rumours according to which he had embezzled money and was therefore dismissed by the defendant. In order to explain himself, the plaintiff informed his neighbors in detail about the disappearance of the aforementioned amount at the defendant bank, and also pointed out his innocence. In addition, he asked a colleague via Facebook whether or not “the amount of EUR 15,000 had reappeared”. This question was posted in a section that was publicly accessible for all Facebook users. Shortly afterwards, the plaintiff deleted this post. A few days later, when asked by a third person, the plaintiff once again reported about the disappearance of the aforementioned amount of money. As a consequence, the defendant bank terminated the plaintiff’s employment contract with immediate effect.
Court proceeding and court order
The Supreme Court ruled that the plaintiff had violated his fiduciary duty, especially his duty of confidentiality, and therefore realised the cause for dismissal due to unreliability and his untrustworthy actions. Hence, the dismissal of the plaintiff’s employment relationship was justified.
Difference between ordinary termination (ordentliche Kündigung) and dismissal (Entlassung)
According to Austrian law, an employment relationship may be terminated without specific cause. With the exception of certain legal or contractual limitations, such a termination of employment is at the sole discretion of the contract’s parties. However, an ordinary termination of employment needs to be compliant with certain dates and deadlines. During the termination period, any and all of the employer’s as well as of the employee’s rights and duties arising from the employment shall remain binding.
In contrast to an ordinary termination, a dismissal constitutes a premature termination of the employment relationship. In order for a dismissal to be justified, good cause needs to exist, making continued employment unacceptable to the employer. A dismissal may also be declared during the termination period. In this case, the employee loses his entitlement to continued remuneration until the termination date, and the employment ends immediately.
Fiduciary duty as a material duty of the employee
Based on a fiduciary duty, employees are generally obliged to maintain the employer’s economic and operational interests. The duty of confidentiality represents one particular form of fiduciary duty, generally relating to company and business secrets. If an employee violates his duty of confidentiality and – as a consequence thereof – his fiduciary duty, the termination cause of unreliability may be realised. An employee’s fiduciary duty continues to apply unchanged during a termination period or a leave of absence.
Unreliability as cause for dismissal
The courts determine from a reasonable business perspective, whether the employer has objectively and justifiably to fear that his interests are being jeopardised by the employee’s behavior. In contrast to disloyalty as another cause for termination, unreliability may be based on circumstances not directly related to the employment relationship. Revealing company or business secrets publicly constitutes unreliable behavior which may justify a dismissal. It needs to be emphasised that in this regard negligent behavior is already sufficient – neither malice nor the actual occurrence of damage is required.
According to the OGH, the plaintiff had clearly violated his duty of confidentiality in the case at hand. The fact that the Facebook post was deleted shortly afterwards does not affect this assessment. Posts in the public domain of Facebook are, according to the OGH, to be put on the same level as a “request in a daily newspaper”.
When posting comments on Facebook, a violation of the duty of confidentiality may not be the only legal offence that leads to a justified dismissal. Imprudent comments about superiors or colleagues may realise the termination cause of considerable defamation. The relevant aspect is, whether the employee’s behavior lowers the employer’s reputation.
A dismissal is further justified if an employee jeopardises his position with an employer during a sick leave period. If, the employee documents his behavior on Facebook while off sick, he provides evidence for the misuse of his sick leave. Finally, depending on the individual case, discriminatory / racist Facebook posts may also lead to a dismissal.
Employees need to be extremely cautious with regard to Facebook posts. Comments or photos harmful to the employer may justify an immediate termination of the employment.