An LKA employee who expresses racist views during a discussion on Facebook may not automatically be terminated without notice. That was the verdict of the Federal Labor Court in Erfurt. Depending on the individual case, the employer may be expected to admonish the employee and, at least until the end of the regular period of notice, transfer him to a less safety-relevant job. (Az .: 2 AZR 28/19).
The judges thus confirmed the decision of the Thuringian State Labor Court. It had the dismissal protection suit of the LKA employee granted. The man was since July 2000 at the Land Thuringia and since September 2014 as shift supervisor at the permanent IT service of the LKA busy and thus looked after security-related jobs.
On August 31, 2016, the man had participated in a public discussion on Facebook. There he described, among other Muslims as "breed" and "scum". He also insulted another panelist.
The prosecutor Erfurt then investigated for sedition and insult and informed the employer. The District Court of Erfurt ceased criminal proceedings against the LKA workers against payment of a fine of 4000 euros.
His employer quit the then 52-year-old in March 2017 for his racist Facebook posts without notice. The statements suggested his lack of personal aptitude for the safety-relevant workplace. There are doubts about the constitutionality.
The LKA employee complained and argued that his statements were covered by the right to freedom of expression. In addition, they were made in the free time. His Facebook profile with real names also give no conclusions about his employer or his professional activity. The reputation of the LKA had not been damaged. He had also been warned or warned during his 17-year activity with the country.
The state labor court ruled that the termination without notice is ineffective (Az .: 6 Sa 204/18). Although the applicant's personal suitability for working as a shift supervisor in the authorized LKA body. The comments on Facebook and during the trial also led to doubts about the constitutionality of the plaintiff.
Despite this lack of suitability, it would have been reasonable for the employer at least until the expiry of the regular notice period to employ the plaintiff in alternative activities. Besides, the man should have been warned. This assessment was followed by the Federal Labor Court.