If, during a telephone conversation, one of the conversation partners purposefully enables another person in the room to secretly listen in on the conversation, e.g. by turning on the room loudspeaker of the telephone or holding the device away from the ear, he or she violates the personality rights of the conversation partner. According to the case law of the Federal Constitutional Court, the violation of the right of personality in these cases means that the person secretly listening in may not be questioned as a witness on the content of the telephone conversation. On the other hand, if the person called did not contribute to the third party being able to listen in on the telephone conversation, there is no prohibition on the use of evidence. The interest of the called party in asserting his or her rights, which are also protected by fundamental rights in individual cases, in legal proceedings as well as the interest of the general public in a functioning administration of justice and a materially correct decision outweigh the interest of the caller in protecting his or her right of personality.
The defendant temporary employment agency terminated the plaintiff's employment within the six-month waiting period of section 1 (1) KSchG. At the time of the termination, the plaintiff was unable to work. The plaintiff considered the termination to be immoral and claimed that she had been called by the defendant's personnel dispatcher immediately before the termination. She said that she was told to come to work despite her inability to work, otherwise she would have to expect dismissal. The defendant denied the alleged statement by the personnel dispatcher. The plaintiff relied on the testimony of a friend who was present during the telephone call and who had overheard the conversation without her knowledge.
The Labour Court heard the personnel dispatcher as a witness and dismissed the complaint. It refused to hear the plaintiff's girlfriend because there was a ban on the use of evidence. The Regional Labour Court dismissed the plaintiff's appeal.
The plaintiff's appeal was successful before the Sixth Senate of the Federal Labour Court. The case was referred back to the Regional Labour Court for further clarification of the facts. On the basis of the plaintiff's submissions at trial, the dismissal would constitute an inadmissible measure under section 612a of the BGB. The Regional Labour Court could only refrain from hearing the plaintiff's friend as a witness if the plaintiff had purposefully enabled her to secretly listen to the telephone conversation. The Regional Labour Court has not yet made any findings in this regard.
Federal Labour Court, Judgement of 23 April 2009 - 6 AZR 189/08 -
Previous instance: Regional Labour Court Munich, judgement of 24 January 2008 - 3 Sa 800/07 -
Source: Press release of the Federal Labour Court No. 41/09
Goldberg Attorneys at Law
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law (IT law)