According to the Salaried Employees Act and most collective agreements, dismissals must be justified. If a dismissal is based on an employee's circumstances, it is often a requirement that they be given a warning prior to the dismissal. Does this requirement also apply in a situation where an employee does not want to accept the restructuring of the company where they work and instead chooses to criticise their employer in the local media?
This was one of the questions that the Eastern High Court had to decide in a recent case.
The case concerned a designer who had been employed at a theatre for many years. For some time, the designer had expressed dissatisfaction with the theatre's management structure, and especially with an employee who was married to the manager of the theatre and who, in the designer's view, exceeded their managerial powers.
As a result of the theatre's restructuring process, the theatre manager's spouse being appointed as creative director and, thus, becoming the designer's formal superior. At the same time, the designer lost his managerial duties. After that, the designer took sick leave, citing the new working conditions, and when the theatre offered the designer a severance agreement, he, instead, only reiterated his criticism.
A few weeks later, the designer went to the local media. He wrote an article with the headline "Backstage trouble", writing that the creative director was not a "team player". The designer also emailed the theatre, stating that several issues at the theatre needed to be disclosed and that he was considering returning to work, which the theatre would have to handle. Soon after that, the theatre dismissed the designer due to, among other things, the disagreements about the new management structure and the comments made in the local media.
The designer issued proceedings against the theatre claiming, among other things, that his statements fell within the freedom of expression.
The Court took into account that for a period of approximately five months prior to the date of notice of termination, the designer had expressed dissatisfaction with the theatre's management structure but that the theatre had addressed the criticism by implementing a restructure.
However, the designer had continually refused to align with the management's decisions. Further, when the designer was offered a severance agreement, he had simply reiterated his criticism and had written in an email that the management's decision to make the artistic director his manager was a "display of power".
In addition, the designer's comments in the local media were, according to the Court, disloyal and likely to damage the theatre's reputation. Further, they had been motivated by a personal dispute and not by a desire to disclose issues of public interest.
Therefore, the theatre could only determine from the designer's email that he would not continue to work with the theatre's current management, despite having mentioned in the same email that he was considering returning to work.
The Court found the dismissal justified, despite the fact that the designer had not been given a prior warning. The district court had also made the same decision.
This judgment illustrates that when deciding on the grounds for dismissal of an employee not covered by the rules on freedom of expression of public sector employees, the disloyalty of the employee's public statements can be considered. Further, it is not necessarily a requirement for prior warning to be given – for example, in a situation where a long course of events leads up to the dismissal and where the employer has taken measures to try to resolve the situation.
For further information on this topic please contact Rikke Falk Dambo at Norrbom Vinding by telephone (+43 35 25 3940) or email ([email protected]). The Norrbom Vinding website can be accessed at norrbomvinding.com.