Employment & labor law

Criticism of the employer on the Internet and the possibility of terminating the employment contract without notice due to employee’s fault.

Due to the virtually unlimited access and popularity of the Internet and social media, employers have to face another challenge, which is online criticism by employees. The Supreme Court has taken under consideration many times the question of where is the limit of permitted criticism. Below we would like to introduce the most important issues that the employer should pay attention to, in the event of becoming aware of the dissemination of certain information about it by employees and before making a decision to take any consequences for the employee, with particular emphasis on the possibility of terminating the employment contract without notice due to employee’s fault.

Freedom of expression and the limits of permitted criticism

When considering the issue of criticism of the employer, first of all, it is necessary to pay attention to the fact that the basic duties of the employee, articulated in the Labor Code are: caring for the welfare of the workplace, respecting the norms of social coexistence and keeping in secret information, that the disclosure of which could expose the employer to damage. In this context it is needed to be emphasized that employees have right to disagree with the actions, neglect or decisions of the employer, however, the manners in which they express their dissatisfaction in this case cannot be unlimited. It is important that the employee who wants to criticize or who is criticizing the employer should do it in the right way and in appropriate form, because such actions may harm the image of the employer, its good name, or be treated as aimed only to harass the employer. In some cases, especially when the criticism is repetitive, it may have more severe consequences for the employing entity and, for example weaken the employer’s business contacts or its position on the market, and even lead to a lower interest in employment in the company, or cause employer’s liability, e.g. in the case of disclosure of confidential information concerning employer’s contractors for example, by the employee while expressing a critical opinion.

Therefore, in the event of experiencing criticism, both online, which seems to be the most common due to the possibility of remaining anonymous and in another form, the employer should react and above all pay special attention to the issues whether the opinion:

– does not constitute a breach of the employee’s obligations to care for the welfare of the workplace;

– does not constitute a breach of the employee’s obligation to maintain trade secrets and comply the provisions on the protection of personal data

– does not violate the norms of social coexistence;

– does not expose the employer to the loss of reputation, business contacts or position on the market;

– is adequate, reliable, containing truthful information, expressed in an appropriate way.

The above mentioned was interpreted from judgments of the Supreme Court, which emphasized „Even justified criticism of relations existing in the workplace should fall within the legal framework and be characterized by an appropriate form of expression, not disorganize work and enable the normal functioning of the workplace and the performance of its tasks.” (Supreme Court judgment of 18 July 2012, I PK 44/12). In the same judgment, the Supreme Court also indicated that “Exceeding the limits of permitted criticism by an employee in relation to the supervisor or the employer’s bodies is a manifestation of disloyalty, regardless of the duties assigned to the position held by the employee (…)”.

Consequences of criticism of the employer on the Internet and the possibility of the employer’s protection

Answering the question of what actions should the employer take in the event of learning about dissemination of negative information about the workplace, co-workers or the employer by employees, acting in accordance with the guidelines of the Supreme Court, first of all, the employer should have in mind the above-mentioned issues raised by the Supreme Court, i.e. examine the size and nature of the breach, as well as consider whether the employee has exceeded the limits of permitted criticism or furthermore grossly negligent of his employee duties by his action. The above analysis will allow to determine the scope of consequences adequate to the employee’s culpability.

According to the Labor Code employer can take on consideration many measures such as:

  1. application of a reprimand or admonition (however only if the employer’s criticism is related to the violation of the order or organization of work);
  2. termination of the employment contract with notice;
  3. termination of the employment contract without notice due to the fault of the employee;

It is also possible to take appropriate steps under civil or criminal law, for example:

  1. obliging the employee to issue an appropriate apology;
  2. obliging the employee to pay a sum of money to the employer or for a specific social goal;
  3. holding the employee for criminally liable for insulting or defaming the employer.

Under the Labor Code, the termination of the employment contract without notice due to the fault of the employee is one of the furthest reactions of the employer to criticism on the Internet. At this point, it must be remembered that this way of termination of the contract should be only used in the case of the most serious breaches, and therefore exceptionally. In terms of formal requirements the justification for this kind of termination of the contract should be made in writing and specify in detail the reasons for the termination of the contract, include examples of employee`s actions, as well as their frequency and dates of occurrence. The form of handing over the document is also important. The receipt of the document should be certified by the employee with signature and date for evidence purposes.

Termination of the employment relationship without notice due to the employee’s fault is the most “severe” way of terminating the employment relationship. Therefore in practice employees often use the right to appeal to the labor court. Consequently, both the legitimacy of terminating the contract in this way and the content of the employer’s statement should be consulted each time.

Due to the fact that commenting the employer on the Internet is becoming more and more common, and at the same time the opinion-forming role of the Internet is constantly growing, it is worth considering the introduction, in the employer’s internal documents, obligations related to the care for the welfare of the workplace, protection of trade secrets also after working hours, or using social media with respect to the employer’s reputation.

Author team leader DKP Legal
check full info of team member: Dorota Dobroch

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