Objective criticism of the employer is permitted. BAG 31.7.2014 - 2 AZR 505/13

At the invitation of the ver.di trade union, a works meeting was held at the company to elect an election committee, which took a confusing course. According to the understanding of both parties to the proceedings, no effective election of the plaintiff took place. Two weeks later, ver.di filed an application with the labor court to appoint an election committee. In the application, it proposed the plaintiff as one of its members. On one of the following days, the plaintiff made a statement in a video recording produced by ver.di to the effect that there were "problems" at the plant. Safety precautions were missing on individual machines. It could "almost be said" that no machine was "100% equipped". The problem is that "no skilled workers are available" and "the control of the machines is not 100% fulfilled". The video was posted on the internet and could be seen on YouTube. The plaintiff also distributed it via "Facebook". In view of this, the defendant terminated the employment relationship without notice on March 15, 2012.

The BAG now ruled that the termination was invalid as there was no good cause. The BAG did not classify the man's statements about the purpose of forming a works council as criticism. He had not intended to discredit the company by claiming that it mainly employed unskilled workers. However, the man was denied special protection against dismissal, which he had invoked due to his candidacy for the works council, as a candidacy for the works council alone does not justify special protection against dismissal. This only applies to the initiators of the election, the elected election committee and the works council candidates. The content and context of the statements are decisive for drawing the line between business-damaging allegations and objective criticism. If the employer uses the statements of an "election candidate" as grounds for dismissal, this is only effective pursuant to Section 15 (3) sentence 1 BetrVG if there are facts that entitle the employer to dismiss for good cause and either the consent of the works council pursuant to Section 103 (1) BetrVG or . if a works council has not been formed . a corresponding court decision is available. Employees who stand or are proposed as candidates for the office of election committee for a works council election are not election candidates in the legal sense.