CASE OF HEINISCH v. GERMANY
Violation of Art. 10;Remainder inadmissible;Non-pecuniary damage - award;Pecuniary damage - claim dismissed
Angelika Nußberger;Dean Spielmann;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger
6. The applicant was born in 1961 and lives in Berlin. She had been working as a geriatric nurse for Vivantes Netzwerk für Gesundheit GmbH (hereinafter referred to as “Vivantes”), a limited liability company specialising in health care, geriatrics and assistance to the elderly which is majority-owned by the Land of Berlin, from 16 September 2000 until 9 February 2005, when she was dismissed. 7. Since January 2002 the applicant had been working in a geriatric nursing home operated by Vivantes, where the patients were partly bedridden, disorientated, and generally dependent on special assistance. In 2002 the Medical Review Board of the Health Insurance Fund (Medizinischer Dienst der Krankenkassen, hereinafter referred to as “MDK”) established serious shortcomings in the daily care provided there, caused by a shortage of staff. 8. Between 24 January 2003 and 19 October 2004 the applicant and her colleagues regularly indicated to the management that they were overburdened on account of staff shortages and therefore had difficulties carrying out their duties. They specified the deficiencies in the care provided and also mentioned that services were not properly documented. In a notification dated 18 May 2003 the applicant further mentioned that she was no longer in a position to assume responsibility for the shortcomings in care resulting from staff shortages. From 19 May 2003 onwards the applicant repeatedly fell ill and was sometimes unable to work. One medical certificate stated that this was the result of overworking. 9. In November 2003, following a further inspection, the MDK, established serious shortcomings in the care provided, on grounds of, inter alia, staff shortages, inadequate standards and unsatisfactory care as well as inadequate documentation of care, and accordingly threatened to terminate the service agreement with the applicant’s employer. Subsequently, restructuring took place. 10. Following a number of further notifications to her superiors explaining the situation, in particular in October 2004, the applicant again fell ill and finally consulted a lawyer. 11. In a letter dated 9 November 2004 the applicant’s legal counsel wrote to the Vivantes management. He pointed out that, on account of the lack of staff, the patients’ basic hygienic care (ausreichende hygienische Grundversorgung) could no longer be guaranteed. He also requested the management to specify how they intended to avoid criminal responsibility – also for the staff – and how they intended to ensure that the patients could be properly cared for. He pointed out to the management that only then could they avoid a criminal complaint or a public discussion of the situation, with all its negative implications. He gave the management until 22 November 2004 to respond. 12. On 18 November 2004 the MDK again visited the premises without prior notice. It was subsequently in dispute between the parties whether the MDK had in fact established that the staffing situation, although difficult, was not critical. 13. On 22 November 2004 the management rejected the applicant’s accusations. 14. On 7 December 2004 the applicant’s lawyer lodged a criminal complaint against Vivantes for aggravated fraud and its relevant legal aspects. He specified that the complaint also served the purpose of avoiding criminal responsibility for the applicant herself following her numerous complaints to Vivantes which had not brought any improvements in the care provided. It was argued that, owing to the lack of staff and the inadequate standards, her employer knowingly failed to provide the high-quality care announced in its advertisements and hence did not provide the services paid for and was putting the patients at risk. He also alleged that Vivantes had systematically tried to cover up the existing problems and urged staff to falsify records of services rendered. The applicant’s complaint referred to the report produced by the MDK following their visit in 2003, and stated that she would be willing to attest to the bad conditions at the nursing home. It further included statements by the applicant concerning overworking and referred to minutes of a team meeting advising Vivantes staff, in order to avoid disciplinary consequences, not to disclose staff shortages and time pressures to patients and their relatives. The criminal complaint included the following passage: “The company Vivantes GmbH, which has financial difficulties and is aware of this, has deceived family members, because the care provided does not in any way correspond to or justify the fees paid. Vivantes GmbH is therefore enriching itself and accepts the inadequacy of the medical and hygienic care. ... This demonstrates how it systematically – including by intimidating staff – tries to cover up existing problems. Staff are requested to draw up records of care provided which do not reflect the way such care was actually given ... Similar problems exist in other institutions; therefore considerable damage is at issue.” 15. On 10 December 2004 the applicant’s lawyer also contacted the board of directors of the applicant’s employer and stated that there was a shortage of staff at the nursing home and that it failed to meet hygiene standards. 16. On 5 January 2005 the Berlin Public Prosecutor’s Office discontinued the preliminary investigations against Vivantes pursuant to Article 170 § 2 of the Code of Criminal Procedure (Strafprozessordnung - see “Relevant domestic law and practice” below). 17. By a letter dated 19 January 2005 the nursing home dismissed the applicant, on account of her repeated illness, with effect from 31 March 2005. The applicant challenged the dismissal before the Berlin Labour Court (file No. 35 Ca 3077/05). 18. Subsequently, the applicant contacted friends and also her trade union, Vereinte Dienstleistungsgewerkschaft (ver.di). On 27 January 2005 they issued a leaflet headed as follows: “Vivantes wants to intimidate colleagues!! Not with us! Immediate revocation of the dismissal of our colleague Brigitte who used to work at Vivantes Forum for Senior Citizens Call for the foundation of a non-party solidarity group” The leaflet also stated that the applicant had lodged a criminal complaint but that this had not resulted in a criminal investigation and that she had been dismissed on account of her illness. It further stated as follows: “Let’s answer back at last ... The insanity that private operators, together with the Berlin SPD/PDS senate, are destroying our manpower out of greed ... Vivantes flagrantly takes advantage of our social commitment. ... This is more than just a dismissal! This is a political disciplinary measure taken in order to gag employees ...” 19. On 31 January 2005 the applicant sent one such leaflet by fax to the residential home, where it was distributed. Only then did Vivantes become aware of the applicant’s criminal complaint. 20. On 1 February 2005 the applicant’s employer gave her the opportunity to make a statement regarding the leaflet; the applicant declined to do so, however. On 4 February 2005 Vivantes informed the works council that it intended to dismiss the applicant without notice. On 8 February 2005 the works council declared that it would not agree to the applicant’s dismissal. 21. On 9 February 2005 the applicant’s employer dismissed her without notice or, alternatively, by 31 March 2005 on suspicion of having initiated the production and dissemination of the leaflet. 22. A new leaflet was subsequently issued reporting on this dismissal; in addition, the situation was reported in a TV programme and in two articles published in different newspapers. 23. On 21 February 2005 the preliminary investigation proceedings against Vivantes were resumed by the Berlin Public Prosecutor’s Office at the applicant’s request. 24. On 25 February 2005 the applicant lodged a claim with the Berlin Labour Court (file no. 39 Ca 4775/05) against her dismissal without notice of 9 February 2005. 25. On 25 April 2005 the applicant’s former employer issued a further notice of dismissal. The applicant’s claim of 25 February 2005 was then extended accordingly. 26. On 12 May 2005 the applicant was heard as a witness by the public prosecution in preliminary investigation proceedings against Vivantes. The preliminary proceedings were again discontinued on 26 May 2005 pursuant to Article 170 § 2 of the Code of Criminal Procedure. 27. By a judgment of 3 August 2005 (file No. 39 Ca 4775/05) the Berlin Labour Court (Arbeitsgericht) established that the employment contract had not been terminated by the dismissal of 9 February 2005 since this could not be justified under Article 626 of the German Civil Code (Bürgerliches Gesetzbuch) or section 1(1) of the Unfair Dismissal Act (Kündigungsschutzgesetz - see “Relevant domestic law and practice” below). In this connection it found that the leaflet – the content of which was attributable to the applicant, since she had transmitted it to her employer without any further declaration – was covered by her right to freedom of expression and did not amount to a breach of her duties under the employment contract. Although it was polemical, it had been based on objective grounds and had not upset the “working climate” in the nursing home. 28. Following a hearing on 28 March 2006, the Berlin Labour Court of Appeal (Landesarbeitsgericht), by a judgment of the same date, quashed the judgment of the Labour Court and found that the dismissal of 9 February 2005 had been lawful as the applicant’s criminal complaint had provided a “compelling reason” for the termination of the employment relationship without notice under Article 626 § 1 of the Civil Code and had made continuation of the employment relationship unacceptable. It found that the applicant had frivolously based the criminal complaint on facts that she could not prove in the course of the proceedings since, in particular, merely referring to the shortage of staff was not sufficient to enable her to allege fraud, and since she had failed to further specify the alleged instruction to falsify records, which was also evidenced by the fact that the public prosecutor had not opened an investigation. The Labour Court of Appeal further held that the criminal complaint amounted to a disproportionate reaction to the denial by Vivantes of any staff shortages, since the applicant had never attempted to have her allegation of fraud examined internally and since, moreover, she had intended to put undue pressure on her employer by provoking a public discussion of the issue. It also pointed out that the nursing home was under the supervision of the MDK, which had carried out a further inspection there on 18 November 2004, shortly before the applicant had lodged her complaint. She could have awaited the outcome of that visit and therefore her criminal complaint had been unnecessary. The court, referring also to the principles established by the Federal Labour Court in its relevant case-law (see “Relevant domestic law and practice” below), concluded that the applicant had not been acting within her constitutional rights and had breached her duty of loyalty towards her employer. 29. On 6 June 2007 the Federal Labour Court (Bundesarbeitsgericht) dismissed an appeal by the applicant against the decision refusing her leave to appeal on points of law. 30. By a decision of 6 December 2007, which was served on the applicant on 12 December 2007, the Federal Constitutional Court refused, without stating further reasons, to accept her constitutional complaint for adjudication. 31. Apart from specific legislation with respect to civil servants exposing suspected cases of corruption, German law does not contain general provisions governing the disclosure of deficiencies in enterprises or institutions, such as illegal conduct on the part of the employer, by an employee (“whistle-blowing”) and discussions on related draft legislation have for the time being not produced any results. 32. In the absence of such specific legislation, an extraordinary dismissal of an employee for having lodged a criminal complaint against his or her employer may be based on Article 626 § 1 of the Civil Code, which provides that an employment relationship may be terminated by either party to the contract without complying with a notice period for a “compelling reason” (wichtiger Grund). Facts must be present on the basis of which the party giving notice cannot reasonably be expected to continue the employment until the end of the notice period or to the agreed end of that relationship, taking all circumstances of the individual case into account and weighing up the interests of both parties to the contract. 33. Section 1(1) of the Unfair Dismissal Act provides that termination of an employment relationship by the employer is unlawful if it is socially unjustified. Under section 1(2) of the Act, termination is socially unjustified unless it is, inter alia, based on grounds relating to the employee himself or to his conduct or continuation of the employment relationship would conflict with compelling requirements for the operation of the enterprise. 34. In a decision of 2 July 2001 (file No. 1 BvR 2049/00) the Federal Constitutional Court ruled in a case where, at the request of the public prosecutor, an employee had given evidence and handed over documents in preliminary criminal investigations that had been instituted against his employer by the public prosecutor ex officio. The Federal Constitutional Court held that, in accordance with the rule of law, the discharge of a citizen’s duty to give evidence in criminal investigations could not in itself entail disadvantages under civil law. The Federal Constitutional Court further pointed out in an obiter dictum that even in the event that an employee reported the employer to the public prosecution authorities on his or her own initiative, the rule of law required that such exercise of a citizen’s right would, as a rule, not justify dismissal without notice, unless the employee had knowingly or frivolously reported incorrect information. 35. In the light of the Federal Constitutional Court’s case-law, the Federal Labour Court, in a judgment of 3 July 2003 (file No. 2 AZR 235/02), further elaborated on the relation between an employee’s duty of loyalty towards the employer and the exercise of his or her constitutionally guaranteed rights. It reiterated that in reporting a criminal offence an employee had recourse to a means of implementing the law that was not only sanctioned by the legal order but also called for under the Constitution. An employee who exercised that right in good faith could not therefore incur a disadvantage in the event that the underlying allegations proved wrong or could not be clarified in the course of the ensuing proceedings. It held, however, that, taking into consideration the employee’s duty of loyalty, a [criminal] complaint lodged by an employee must not constitute a disproportionate reaction in response to the employer’s conduct. Indications of a disproportionate reaction by the complainant employee could be the justification of the complaint, the motivation of the person lodging the complaint or the failure to have previously drawn attention to the impugned deficiencies internally within the enterprise. In this context the employee’s motives for lodging the complaint were of particular significance. A complaint that was lodged solely to cause damage to the employer or to “wear him or her down” could constitute a disproportionate reaction depending on the charges underlying the complaint. As regards the possibility of previous internal clarification of the allegations, the court stated that it had to be determined in each individual case whether such an approach could reasonably have been expected of the employee. It would not be expected if the latter had obtained knowledge of an offence which, if he or she failed to report it, would render him or her liable to criminal prosecution or in the event of a serious criminal offence or an offence committed by the employer himself. In addition, previous internal clarification of the matter was not required if redress could not legitimately be expected. If the employer failed to remedy an unlawful practice even though the employee had previously drawn his attention to that practice, the latter was no longer bound by a duty of loyalty towards his employer. 36. Article 170 of the Code of Criminal Procedure provides for the following outcomes of investigation proceedings: “(1) If the investigations offer sufficient reason for bringing public charges, the public prosecution office shall submit a bill of indictment to the competent court. (2) In all other cases the public prosecution office shall terminate the proceedings. The public prosecutor shall notify the accused accordingly if he was examined as such or a warrant of arrest was issued against him; the same shall apply if he has requested such notice or if there is a particular interest in notifying him.” 37. In its Resolution 1729 (2010) on the protection of “whistle-blowers” the Parliamentary Assembly of the Council of Europe stressed the importance of “whistle-blowing” – concerned individuals sounding the alarm in order to stop wrongdoings that place fellow human beings at risk – as an opportunity to strengthen accountability, and bolster the fight against corruption and mismanagement, both in the public and private sectors. It invited all member States to review their legislation concerning the protection of “whistle-blowers”, keeping in mind the following guiding principles: 6.1.1. the definition of protected disclosures shall include all bona fide warnings against various types of unlawful acts, including all serious human rights violations which affect or threaten the life, health, liberty and any other legitimate interests of individuals as subjects of public administration or taxpayers, or as shareholders, employees or customers of private companies; 6.1.2. the legislation should therefore cover both public and private sector whistle-blowers ..., and 6.1.3. it should codify relevant issues in the following areas of law: 6.1.3.1. employment law – in particular protection against unfair dismissals and other forms of employment-related retaliation; ... 6.2.2. This legislation should protect anyone who, in good faith, makes use of existing internal whistle-blowing channels from any form of retaliation (unfair dismissal, harassment or any other punitive or discriminatory treatment). 6.2.3. Where internal channels either do not exist, have not functioned properly or could reasonably be expected not to function properly given the nature of the problem raised by the whistle-blower, external whistle-blowing, including through the media, should likewise be protected. 6.2.4. Any whistle-blower shall be considered as having acted in good faith provided he or she had reasonable grounds to believe that the information disclosed was true, even if it later turns out that this was not the case, and provided he or she did not pursue any unlawful or unethical objectives.” The above guidelines were also referred to in the Parliamentary Assembly’s related Recommendation 1916 (2010). 38. Article 24 of the Revised European Social Charter reads as follows: “With a view to ensuring the effective exercise of the right of workers to protection in cases of termination of employment, the Parties undertake to recognise: ... a) the right of all workers not to have their employment terminated without valid reasons for such termination connected with their capacity or conduct or based on the operational requirements of the undertaking, establishment or service; ... The Appendix to Article 24 specifies : “3. For the purpose of this article the following, in particular, shall not constitute valid reasons for termination of employment: ... c the filing of a complaint or the participation in proceedings against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities; ...” Article 24 of the Revised European Social Charter has been ratified by twenty-four of the Council of Europe’s member States. Germany has signed but not yet ratified the Revised European Social Charter. 39. Article 5 of the Termination of Employment Convention of the International Labour Organisation (ILO Convention No. 158 of 22 June 1982) stipulates: “The following, inter alia, shall not constitute valid reasons for termination: ... (c) the filing of a complaint or the participation in proceedings against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities; ...”. Germany has not ratified ILO Convention No. 158. 40. A number of other international instruments address the protection of whistle-blowers in specific contexts, in particular the fight against corruption, such as the Council of Europe’s Criminal Law Convention on Corruption and Civil Law Convention on Corruption or the United Nations Convention against Corruption.