Judgment of the Court of Appeal of Lisbon of 2014-09-24

Limits to the freedom of expression and communication of  employees concerning content published on Facebook

The Court of Appeal of Lisbon was requested to rule on the case of an employee (a trade union delegate) who published on his personal profile of the Facebook social network a text that was offensive to the name and reputation of the employer and against whom disciplinary proceedings were brought, leading to the sanction of termination for cause.

The employee wanted the court to declare the unlawfulness of the dismissal and to order the employer to reinstate him.

This is the second judgment of the Court of Appeal to rule on Facebook posts with texts that are potentially offensive and harmful for the good reputation of the employer (see judgment of the Court of Appeal of Porto dated of 2014-09-08).

Following the aforementioned judgment of the Court of Appeal of Porto and of the Court of  1st   Instance,  the  Court of Appeal of Lisbon considered  that  the content  posted 

exceeded the private domain of the employee and, consequently, it was not worthy of the protection of confidentiality provided for in the applicable Portuguese legislation .

The Court considered that the private domain of the employee was not at stake. For instance the content of the post itself, which encouraged those considered “friends” of the employee to share the post (by writing “SHARE, FRIENDS” at the end of his post), and could not therefore “…expect any privacy, since it deliberately did not even try to preserve it …”, “…nor be unaware of the serious and foreseeable possibility that the post could be known by a large group of employees, or even immediate superiors, or even his employer”.

On the other hand, the Court concluded that the employee should keep his criticising and opinion within certain boundaries, in particular, respecting the personality rights of the employer and the normal functioning of the company.

Finally, the Court considered that the comments posted were sufficiently offensive and serious to amount to a disciplinary infringement reasoned by the breach of the duty of courtesy and respect, which threatened the quietness of the work environment and the balance of the organisation and that therefore justified the arising of “serious and legitimate doubts as to the conformity of the employee’s behaviour in the future , which made it practically and immediately impossible to maintain the employment relation …”.

The Court of Appeal of Lisbon therefore decided not to uphold the appeal brought by the employee, concluded that the disciplinary proceedings were lawful as was the consequent enforcement of the sanction of dismissal , since the concept of termination for cause had been met.

Judgment of the Constitutional Court of 2014-09-29

Compatibility of Religious Freedom with Employment and Corporate Needs

The Constitutional Court was requested to rule on the resolution of the Plenary of the Supreme Council of the Department of Justice, which denied the request made by an employee to suspend work on shift days falling on a Saturday, since the employee is a Seventh Day Adventist and reserves that day of the week as holy day.

After the appeal was dismissed by the Plenary of the Administrative Litigation Section of the Supreme Administrative Court, the employee resorted to the Constitutional Court for a review of the material constitutionality of Article 14(1)(a) of the Law o f Religion Freedom, when interpreted as meaning that the exemption from work for religious reasons can only occur with employees with flexible working hours .

The employee in question (currently Deputy Public Prosecutor at the court of Covilhã) is a member of the Seventh Day Adventist Church that reserves Saturday as holy day, dedicated to rest, but above all to adoration and religious ministry , during which is impossible to work.