Recently, against the background of the COVID-19 pandemic, the Supreme Court issued a decision on the justification of dismissals of „querulous“ employees, from which it can also be inferred, for situations without any COVID connection, that the employer need not accept private opinions voiced within the workforce that conflict with important company concerns or objectives (OGH 25 May 2022, 8 ObA 24/22w).
In the facts underlying the Supreme Court’s decision, the employee announced, in a circular email „couched in a missionary tone“ to all staff in his area of work at a provincial hospital, that he would defy justified instructions of the employer regarding the COVID access tests, or would comply with them only under conditions dictated by himself. The employment relationship was terminated by the employer on account of this conduct.
The justification put forward by the employee in the proceedings – that he was free to hold and express, regarding the reasonableness of the instructions, an opinion deviating from the „mainstream“ – was not called into question by any of the instances. This justification did not, however, help the claimant, because, according to the findings, the reason for his dismissal was not his opinion and the expression thereof as such, but the manner in which he expressed it towards the workforce („missionary“), thereby unsettling the workforce. According to the entirely correct assessment of the Supreme Court, the employer has an overriding interest in avoiding an unsettling of the workforce through statements presented in such a manner.
The decision certainly has a significance going beyond the criticism of COVID measures when it comes to dismissing employees who position themselves, through their statements, against important company concerns or who work against such concerns.