Labor Law: Threats and disturbance of peace at the workplace: ordinary dismissal justified?

If an employee spreads threats against ver.di via a private Facebook group comprising 1,000 colleagues, this justifies the ordinary termination of his employment relationship. This was decided by the Berlin Labor Court in a ruling dated October 7, 2024 (Ref. 59 Ca 8733/24 and 59 Ca 11420/24).

Facts of the case

The judgment of the Berlin Labor Court is based on the following facts: The defendant BVG is the largest operator of local public transport in Germany. The plaintiff works for this company as a streetcar driver. He is the administrator of a private Facebook group that is aimed at drivers employed by the defendant and has around 1,000 members. In May 2024, the plaintiff writes a comment addressed to the members of the ver.di bargaining committee and uploads it in his group. The commentary refers to the result of a ver.di member survey and ends with a photomontage. It shows a man kneeling on the floor with the barrel of a gun pointed at his head. Next to the man is the lettering “ver.di”. The photomontage is captioned “VER.DI DOES NOT HEAR THE WARNING SHOT!”. It also shows the employer's logo. Seven employees of the defendant, who are also trade union officials, complain about the plaintiff's contribution and feel threatened by his depiction. After a formal hearing of the plaintiff and the works council, BVG terminates the employment relationship without notice and, alternatively, with due notice.

Reasons for the decision

The Berlin Labor Court declared the ordinary dismissal with notice to be effective. According to the court, the plaintiff had specifically threatened employees with the photomontage. This also constituted a significant disturbance of peace at the workplace. Although the Facebook group was private, it was expressly aimed at the defendant's drivers and, with around 1,000 members, had an unmanageable target group. The post was therefore also intended to have an external effect. The photomontage was to be understood as a threat to employees who actively campaign for ver.di and, as can be seen from the complaints, was also understood. This is evident above all from the direction of the gun barrel towards the head of the man depicted. Such a concrete threat was no longer covered by freedom of expression. There was also a breach of secondary obligations under the employment contract. The plaintiff must have clearly assumed that this could not be tolerated by the defendant. Against this background, a warning was not necessary. However, the balancing of interests in the specific case showed that the dismissal was only effective as an ordinary dismissal. In particular, due to his length of service and considerable maintenance obligations, the plaintiff was dependent on the remuneration to be paid during the notice period and needed time to find new employment.

Practical advice

The judgment of the Berlin Labor Court illustrates that threats are not covered by freedom of expression. It also shows that the (here: alleged) private misconduct of an employee on social media can also justify a dismissal. However, this is only possible in exceptional cases. The decisive factor is whether the behavior was related to the employment relationship and led to operational impairments. In the present case, both of these criteria were met with a degree of clarity that is probably rare. Before giving notice of termination, employers must always carefully examine whether there is a sufficient connection between the misconduct and the operational activity. It remains to be seen whether the judgment of the Berlin Labor Court will become legally binding. In the event of an appeal, the next instance will have to deal with the dismissal, which is apparently based on a profound conflict between union and non-union employees at BVG.