Quite understandable: when does bullying occur?

The supervisor behaves roughly and insults her employee as "weak and dependent".

Quite understandable: when does bullying occur?

The supervisor behaves roughly and insults her employee as "weak and dependent". In addition, overtime et cetera are a contentious issue. The employee who fell ill demands compensation for bullying - rightly so?

The Thuringian State Labor Court (LAG, Az.: 1 Sa 269/20) recently pointed out that bullying requires systematic, targeted behavior to be proven. Conflict situations that are common in working life, which can also extend over a longer period of time, do not count here.

Not every unjustified criticism, rudeness or legally incorrect action such as an invalid termination by the employer means bullying or a breach of contract or tort. The subjective feeling of the employees is not important.

How was the case?

A nurse who had been employed in an old people's home for about ten years stated that the working atmosphere had deteriorated significantly under the new nursing service management (PDL) and home management and that this had already led to greater staff turnover. She raised an allegation of bullying, particularly because of the behavior of the PDL. When she asked for a Sunday off - the supervisor was taking care of an emergency - there was a verbal argument. The plaintiff nurse argued that the PDL reacted harshly and said that she did not have to work that Sunday, but that she then "didn't have to come anymore".

When asked, she was then shouted at and thrown out of the room. In the run-up to a staff meeting then planned with legal support, the PDL called her in her free time and accused her of making a fool of herself; it's her way of getting loud and sometimes angry. The PDL then called three more times and described them as weak and dependent. This led to a nervous breakdown and severe anxiety and depression in the employee.

Overtime and bonuses were also disputed, the employers referred, among other things, to the applicable expiration periods and requested the retrospective change agreement for an increase in working hours. Due to the cancellation of the employee, scheduled arbitration negotiations only took place with her legal representation, she gave the reason for a funeral service and was accused of lying by the management of the home. Afterwards it turned out that there were two funeral services, but the home management only knew one.

The employee received psychiatric inpatient treatment and presented a certificate certifying a “severe depressive episode after bullying by a superior”, finally resigned for health reasons due to the ongoing conflict situation and demanded compensation for bullying of at least 30,000 euros and a further around 20,000 euros Compensation for causing the job loss by the employer, overtime pay and a better grade (good instead of satisfactory).

The judgment

The lawsuit was dismissed in its entirety by the LAG judges. According to the verdict, the nursing staff lacked the corresponding explanation and evidence for all claims.

The lecture is not sufficient for an allegation of bullying, which can trigger a claim for compensation for pain and suffering. According to settled case law, bullying only occurs when systematic, targeted harassing behavior can be proven and established. Normal or "usual" conflict situations, impolite, unfriendly action or even legally incorrect action are not sufficient for this. Not every unjustified criticism, excessive warning or even ineffective termination also represents a violation of personality and leads to a breach of the contractual duty of care with a consequence of compensation for pain and suffering. Bullying should be examined objectively; According to the court, subjective perception is irrelevant.

The reasoning

The nursing staff only specifically stated the two incidents with the PDL, everything else was general claims of a worse working atmosphere and a resulting staff turnover. The two incidents did not suffice for a systematic, targeted mobbing intervention quality, even if one assumes the - disputed - presentation of the employee to be correct, even if the limit of politeness may have been exceeded.

In the incident with the question about the free Sunday, the PDL was also busy with an emergency and therefore non-compliance with the polite rules was at least understandable. The accusation of bullying the employee and the disparagement as a person fail because the PDL admitted their short-tempered nature. It is then clear that this is not directed against the employee as a person. In addition, the coveted free Sunday was granted. The phone call in which the PDL is said to have described the employee as weak and dependent was of a different quality and was no longer a socially appropriate conflict situation, but it was related to the other incident and was so close in time that it was a singular event and not a question of systematic harassing behavior over a longer period of time.

The accusation of lying by the management of the home does not result in bullying either, because this later turned out to be a misunderstanding and not a form of harassment. An employer may try personnel measures such as the contract change with adjustment of working hours. Disputes about overtime, which had even led to a partial agreement here, are also socially appropriate.

For the claim for damages, the employee would have had to demonstrate that the employer was at fault for the termination, which was not possible. The fact that the employee had stated several times through her lawyer that she wanted to continue working also speaks against the fact that there is no alternative to resigning. In doing so, she herself made the reasonableness clear. The coveted better grade in the certificate also failed due to the plaintiff's lack of presentation and proof - for a grade better than an average satisfactory, the employee bears the burden of presentation and proof and did not comply with this.

Attorney Dr. Alexandra Henkel is a specialist lawyer for labor law, business mediator, business coach and certified data protection officer (TÜV).

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