Should one party to a telephone conversation deliberately enable another individual present in the room to surreptitiously overhear the discussion—for instance, by activating the phone's speakerphone or holding the device away from their ear—this constitutes an infringement of the other party's personal rights. In such instances, as per the jurisprudence of the Federal Constitutional Court, the secretly listening individual may not be called as a witness regarding the content of the telephone call. Conversely, if the recipient of the call did not facilitate the third party's ability to overhear the conversation, no prohibition on the use of evidence applies. The recipient's interest in asserting their rights, which may also be constitutionally protected in a judicial proceeding, along with the public interest in an effective administration of justice and a substantively correct decision, takes precedence over the caller's interest in protecting their personal rights.
The defendant temporary employment agency terminated the plaintiff's employment within the six-month probationary period stipulated by § 1 (1) of the Protection Against Dismissal Act (KSchG). At the time of termination, the plaintiff was incapacitated for work. The plaintiff asserts that the termination is unconscionable, claiming that she was contacted by the defendant's HR dispatcher immediately prior to the termination. The dispatcher allegedly instructed her to report for work despite her incapacity, threatening termination otherwise. The defendant has contested the HR dispatcher's purported statement. To corroborate her assertion, the plaintiff cited the testimony of a friend who was present during the phone call and had inadvertently overheard the conversation.
The Labor Court heard the HR dispatcher as a witness and subsequently dismissed the claim. It declined to hear the plaintiff's friend as a witness, asserting a prohibition on the use of such evidence. The Regional Labor Court upheld the lower court's decision, rejecting the plaintiff's appeal.
The plaintiff's appeal to the Sixth Senate of the Federal Labor Court was successful. The case has been remanded to the Regional Labor Court for further factual clarification. Based on the plaintiff's procedural arguments, the termination would constitute an impermissible reprisal under § 612a of the German Civil Code (BGB). The Regional Labor Court was only justified in declining to hear the plaintiff's friend as a witness if the plaintiff had deliberately facilitated her secret listening to the telephone conversation. The Regional Labor Court has not yet made any findings regarding this specific point.
Federal Labor Court, Judgment of April 23, 2009 – 6 AZR 189/08 –
Previous Instance: Regional Labor Court of Munich, Judgment of January 24, 2008 – 3 Sa 800/07 –
Source: Press release of the Federal Labor Court No. 41/09
Goldberg Rechtsanwälte
Attorney Michael Ullrich, LL.M. (Information Law)
Specialist Lawyer for Information Technology Law (IT Law)
Email: info@goldberg.de
