The Higher Labor Court of Hamm decided in its judgment of 10 October 2012 that a trainee was effectively dismissed without notice for good cause since he called his instructor a “slave driver and exploiter”.
The plaintiff, aged 26 years at the receipt of the notice of dismissal, stated on his Facebook profile under the heading “Employer”: “slave driver & exploiter”, “Bochum serf”, “doing stupid bullshit for the minimum wage -20%”. After the instructor of the plaintiff had become aware of those entries he gave extraordinary notice of dismissal terminating the apprenticeship. The plaintiff filed an action for protection against dismissal and basically invoked his right to freely express his opinion.
While the Labor Court of Bochum held up the action for protection against dismissal at the first instance, the Higher Labor Court of Hamm considered the dismissal as effective. The Higher Labor Court of Hamm considered that calling the instructor a “slave driver & exploiter” constituted an insult which was made accessible to a multitude of persons. In the view of the Higher Labor Court of Hamm, the insult justified the extraordinary notice of dismissal, also when taking into account the special features of the apprenticeship, above all since the plaintiff was aged 26 years when he insulted him and thus had a corresponding level of understanding.
This judgment rendered by the Higher Labor Court of Hamm strengthens the rights of employers against defamatory statements made by employees on social networks, taking in particular into account that such statements may become known to quite a large group of persons. Nevertheless, it has to be noted that insulting statements made by the employee about the employer do not justify an extraordinary notice of dismissal per se. It has always to be examined in the individual case whether the statement is covered by the free expression of opinion or whether the statement does not enjoy protection by a fundamental right – e.g. is beyond the limit of abusive criticism or statements defamatory upon their face