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Søren Skjerbek
Partner LLM

Rematerialization: artistic happening or reason for summary dismissal?

The Royal Danish Academy of Fine Arts was justified in summarily dismissing a postdoc who pushed a plaster bust of Frederick V into the Copenhagen harbour.

Freedom of expression, including artistic freedom of expression, is protected under article 10 of the European Convention on Human Rights and section 77 of the Constitutional Act of Denmark. However, can these provisions be used to justify an employee vandalising the employer’s property as part of an artistic happening?

In connection with a lecture at the Royal Danish Academy of Fine Arts, one of the Academy’s lecturers had been invited to give a presentation on the Academy’s colonial past and its aftermath. Prior to the presentation, the lecturer had invited a number of students for a meeting about the possibility of holding a happening during the lecture involving, for example, removal of a bust of Frederick V (king of Denmark and Norway from 1746 to 1766) placed in the Academy’s assembly hall.

After that, the lecturer had opened the door to the assembly hall with her access card, removed the bust and carried it to the Copenhagen harbour with the students where she pushed the bust into the harbour basin.

Divers later retrieved the bust from the harbour basin, but it had been damaged in the meantime.

As a result of the matter, the lecturer was dismissed summarily on the grounds that by committing acts of vandalism as part of the study programme she had failed to show the degree of responsibility, objectivity and professionalism expected from employees. The question, then, was whether the summary dismissal was justified.

During the proceedings, the lecturer’s trade union submitted that it was an artistic happening protected under article 10 of the European Convention on Human Rights and section 77 of the Constitutional Act on Denmark, because the lecturer’s aim was to rematerialize the bust – “rematerialization” is an artistic process where material takes a new form and, thus, obtains new meaning – to create dialogue about the Academy’s colonial past. In this context, the lecturer believed that the bust symbolised the Academy’s embeddedness in the colonial history of Denmark, because the bust was placed at the back of the assembly hall, forming the centre of the Academy, and because the bust was watching the assembly hall like a plantation owner.

The industrial arbitration tribunal decided, however, that the summary dismissal was justified. The umpire stated that neither section 77 of the Constitutional Act of Denmark, nor article 10 of the European Convention on Human Rights, nor the freedom of expression of public sector employees can justify public sector employees expressing themselves by destroying the property of others. Accordingly, a public sector employee who removes and destroys publicly owned objects of significant value from the workplace can, as a starting point, be dismissed summarily.

Norrbom Vinding notes

  • that the outcome was expectable because, obviously, employees cannot vandalise the employer’s property, irrespective of whether such acts are sought reasoned by the freedom of expression; and
  • that by vandalising the employer’s property employees may also incur liability for damages and punishment under the Criminal Code.

The content of the above is not, and should not be a substitute for legal advice.