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Rikke Falk Dambo

Backstage trouble

A theatre was justified in dismissing a designer who did not want to accept a restructure and had spoken critically in the local media.

According to the Salaried Employees Act and most collective agreements, dismissals must be justified. If a dismissal is based on the employee’s circumstances, it is often a requirement that the employee has been given a warning prior to the dismissal. But does this requirement also apply in a situation where the employees does not want to accept a restructure at the employer and instead chooses to speak critically in the local media? That was one of the questions to be decided by the Eastern High Court in this case.

The case was about a designer who had been employed at a theatre for many years. For some time, the designer had expressed dissatisfaction with the theatre’s management structure, and especially with an employee who was married to the manager of the theatre and who, in the designer’s view, exceeded their managerial powers.

The theatre carried through a restructure, which e.g. resulted in the spouse of the manager of the theatre being appointed as creative director and, thus, the designer’s formal superior. At the same time, the designer lost his managerial duties. After that, the designer reported sick, citing the new working conditions. And when the theatre offered the designer a severance agreement, he just reiterated his criticism.

A few weeks later, the designer went to the local media. He wrote an article with the headline ”Backstage trouble”, writing that the creative director was not a ”team player”. The designer also emailed the theatre, stating that the shop steward sided with the management, that several issues at the theatre needed to be disclosed, and that he was considering returning to work, which the theatre would then have to handle. Soon after that, the theatre dismissed the designer due to, among other things, the parties’ disagreements about the management structure and the comments made in the local media.

The designer issued proceedings against the theatre claiming, among other things, that his statements fell within the freedom of expression.

Could not and would not
The High Court took into account that for a period of approx. five months prior to the date of notice of termination the designer had expressed dissatisfaction with the theatre’s management structure but that the theatre had addressed the criticism by, for instance, implementing a restructure.

However, the designer had persisted in refusing to accommodate himself to the management’s decisions. Further, when the designer was offered a severance agreement, he simply reiterated his criticism and wrote in an email that the management’s decision to make the artistic director his manager was a “display of power”.

In addition, the designer’s comments in the local media were, according to the High Court, disloyal and likely to damage the theatre, and they were further motivated by a personal dispute and not by a desire to disclose issues of public interest. The theatre had to perceive the designer’s subsequent email – regardless of the remark that he was considering returning to work – in such a way that he would not and could not continue to work with the theatre’s current management.

In light of this, the High Court found the dismissal justified, notwithstanding the fact that the designer had not been given a prior warning. The district court had come to the same decision.

Norrbom Vinding notes

  • that the judgment illustrates that when deciding if the dismissal of an employee not covered by the rules on freedom of expression of public sector employees is justified, it may be taken into account whether the employee’s public statements can be regarded as disloyal; and
  • that it is not necessarily a requirement that a prior warning has been given, e.g. in a situation where a long course of events leads up to the dismissal and where the employer has taken measures to try to resolve the situation.

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