"You are a beautiful woman" This message is not enough for termination without notice
An employee makes advances towards a female colleague. After a verbal altercation, the man is dismissed without notice for sexual harassment: He takes legal action and wins.
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- "You're a beautiful woman," writes an older employee to his younger colleague on Facebook.
- His advances lead to a dispute at work: the man is dismissed without notice and without warning.
- The man takes the matter to court: the Aargau High Court now confirms the ruling of the Kulm District Court that the dismissal was unlawful.
A then 53-year-old employee of a company wants to get close to a 20-year-old female colleague. He sent her a Facebook message in February 2022: "You are a beautiful woman. Unfortunately unattainable for me". With a kiss and a monkey emoji.
Three months later, in May 2022, there is a verbal altercation at work between the man and his much younger colleague. The woman is questioned about the incident by a superior. The company responded the next day by dismissing the employee without notice - without prior warning.
Message was "not obviously" sexual harassment
The man does not accept the dismissal and takes the case to court, reports the "Aargauer Zeitung" newspaper. Shortly before the incident, he himself had given notice with effect from August 31 and is now suing for his salary up to the end of the regular notice period as well as for the date on his employment reference when the employment relationship ended to be changed.
At the heart of the case is the question: Is the termination without notice due to sexual harassment justified or not? In the first instance, the Kulm District Court ruled that the man's misconduct was not serious enough to justify termination without notice. It awards him the required salary payments and a penalty payment.
The company then appealed to the Aargau High Court - and was unsuccessful. The court considers the man's Facebook message to be "not obviously" sexual harassment, as "the content is primarily a compliment, without the use of words or emojis with a clearly sexual connotation".
Company could have taken other measures
In addition, the employee had no superior function towards the female colleague and therefore had no increased responsibility or duty of care. As the man had terminated his employment contract with due notice anyway, the company could reasonably have been expected to continue the employment relationship until the agreed end and, if necessary, take measures to prevent personal contact between the man and the woman.
The court points out that, according to the case law of the Federal Supreme Court, not all sexual harassment in the workplace is grounds for termination without notice. This is the case if the relationship of trust is so profoundly shaken that it is no longer reasonable to expect the contract to continue. Less serious cases must have occurred repeatedly despite warnings in order to justify termination without notice.
Are you or has someone you know been the victim of sexualized violence? You can find help here:
- Network "Prevention of sexualized violence in the leisure sector"
- Pro Juventute, advice for children and young people, telephone 147
- Dargebotene Hand, Worry Hotline, telephone 143
- Victim support Switzerland
