Sex, Drugs & Rock n’ Roll – Part 3

An employee files a suit for unfair dismissal before the Luxembourg labour court, another employee files a similar suit before the Esch-sur-Alzette court. In each case, the employer considers that the dismissal was fair, as the employees had allegedly been abusive about their employers on Facebook, the well-known social network.

1. Facebook: ‘The friends of my friends are my friends‘*…not?

In the first case, an apprentice had been disobliging about his employer on Facebook, which could be read by everyone.

The employer considered that the above justified the termination of the apprenticeship contract. The employer had not terminated the contract, in that case, but had complained to the relevant professional chamber, which had decided to terminate the contract, based on the duty to be loyal to, and respect, the employer.

The apprentice claimed the following: the language he used belonged to his peer group, and could therefore not be deemed as offensive as the employer claimed ; the offensive remarks were written after his employer told him he smoke too much and while he was angry ; somebody else could have written these comments on his post, unknown to him though on his behalf, possibly with his laptop.

In its decision of 21 February 2011, the labour court acknowledged the parties’ claims but noted that the professional chamber concerned – not the employer – had validly terminated the apprenticeship contract. The court therefore dismissed the claims by the apprentice, as wrongly directed against the employer, instead of being directed against the entity responsible for the dismissal.

2. Where privacy and work environment meet…

In the second case, before the Esch-sur-Alzette labour court, a city worker had been dismissed for so-called outrageous and humiliating remarks on Facebook about his employer, taking into account that the mayor of that city was one of his ‘friends’ (in the meaning given by Facebook), which demonstrated, according to the employer, ‘a definite willingness to be disobedient, which could destroy the employer’s authority as well as the trust’ between the parties.

The employee denied being the author of the remarks made on Facebook, as the account could have been created and used by anyone.

In its decision of 15 November 2011, the Esch-sur-Alzette labour court states that, in principle, “a fact in relation to an employee’s private life, such as in the case at hand, may in principle not justify a dismissal, an employee’s ‘private life’ being his acts, words and behaviours that are unrelated to the execution of the employment contract or the company’s running“.

However, the court gives exceptions to that principle: the dismissal by the employer is justified “if that fact, related to the employee’s private life, conflicts with the employee’s duty of loyalty or if the employee’s behaviour created a serious disturbance of work, taking into account both the employee’s position and the company’s aim” (court decision of 15 November 2011 mentioned above).

In that specific case, the court decides that the Facebook account of the employee concerned is visible only by a restricted group of users. It takes also into account the other remarks made by that employee on his Facebook account, the employer fails to prove that the employee had created a serious disturbance of work or been manifestly disobedient: the dismissal is thus deemed unfair.

The employee was awarded no financial damages by the court, given that the employee concerned had been dismissed with a statutory six month-notice period. He was, however, awarded EUR 2,500 in injury-to-feelings damages.

3. Criminal liability 

Employees often claim, regarding remarks made on Facebook, that anybody could have created, or hacked into, the Facebook account to make uncontrollable and reprehensible comments in the employee’s name.

If the argument may sometimes be rejected as being in bad faith, it is deemed valid in certain cases, as per recent decisions by the criminal chamber of the Luxembourg district court.

A lover, evicted, reacted by using the Hotmail, Facebook and MySpace accounts of his ex-girlfriend without her consent: he changed the passwords and sent abusive messages on her behalf to all her contacts.

Further to a search of the premises of two Luxembourg based internet providers, the IP addresses used and their owner were identified and the jealous man admitted to the facts.

The court ordered that the unsuitable ex-boyfriend pay only a fine of EUR 1,250 “in particular given he made a full confession throughout the criminal proceedings” (criminal chamber of the Luxembourg district court, decision of 3 March 2011).

Another person was sentenced to 6 months imprisonment with probation and a fine of EUR 1,500 (criminal chamber of the Luxembourg district court, decision of 5 April 2011).

In both cases, the court underlined the sentences for infringing the rights of third parties, for instance by entering a third party’s social network or email account, including “entering, changing or deleting data or the way it is treated or conveyed”: 3 months to 3 years imprisonment and/or a fine of EUR 1,250 to EUR 12,500 (art. 509-3 criminal code).

published in Entreprises Magazine, May/June 2012