The Scream
Again and again, bullying is at the heart of Labor’s Diary processes. The judgments about this are probably as varied as the color of the sand on the beach. We know that the light is the factor for the color of the sand and the sun is the factor that determines the light.
In labor it is to play the judge and his two assessors, who are often unnoticed and often play an important role as a „string-puller,“ because they know come from the „classic estates organizations, employer associations and trade unions. Here it is often the lack of „independence“ of the court, because the state representatives are subject to the order of their employers, and they want to know, in Germany often something different than we citizens, keyword lobbying.
In the case of the nursing services manager and her lawyer at the same time President of the German Society for Anti-Discrimination Law a new and remarkable step taken.
He has almost bullying diary transferred to a timeline, and thus visualized the course of the bullying attacks. „In a remarkable Case Labor has a Cottbus Red Cross nursing services manager 30 000 is awarded for pain and suffering. Previously, it has not been one Contract Resolution approved, so you can see the verdict with mixed eyes. „(1)
For by the dissolution of the employment contract, the applicant informed the Court has taken an important decision, which was, to the reintroduction of a bullying victim in her job, with the help of all the instruments. Judges fear such decisions as the rabbit, the snake. For most of you would then also have the „termination of the bully or offender“ to be chosen as a model have made the LAG Schleswig Holstein and Labor Munster in their judgments. (Case 3 Sa 224/09, 2 Approximately 84 D/09) (2)
Nevertheless, Prof. Alenfelder has shown how to build a model bullying action and not only the pleadings with the usual standard awards can be launched. That Bullying Diary for the „Paper web“The remedy is not just the evidence. And that’s my view a very important finding from the process even before Mainz Labor.
>> You (Alenfelder and his colleague) also spotlights the court not only „a 23-page Application“Submitted, but it graphically illustrates“ a good two-meter-long paper strip „recorded. These were“box labeled …. side by side on a timeline from 2004 to 2009 „with“personal attacks stichpunktartig recorded against their client. „(1) <<You have thus delivered to the success of the applicant, an important legal input, focusing not solely based on a bullying diary, as it allows them bden were gone.
Bullying experience
For in the case of the „main cashier,“ the plaintiff has relied solely on his own diary as evidence, and that can often fatal have, just show up when entries, which the court like honey hungrily sucks, even though they were the victim differently, Keywords: ambiguity.
Such passages as the following emerge from the diary of the plaintiff in the Mainz process in many judgments and push the victim repeatedly on the head. For with the entry in her diary, she wanted to bullying often bring something different to express what is, but later dropped by the court under the table like a sudden and is used in the trial of the bullying victims.
„In keeping with this, that the Labor-which has already been made, the applicant himself where in he his diary represented at the meeting described 28.2.2008 with Mr. S., the view was that he was Cashier and be as Cashiers used. And so has the bullying victims or lost himself made the famous leg. His lawyer, however, would have a „neutral third party“ faux pas these noticed it if he had read the documents. Even so, an indication, when lawyers had read the documents of their clients?
I think it shows quite clearly that the use of the Bullying Diary should be examined very carefully and only clear and explicit content of a court should be presented. Such a thing must be a lawyer, for example, govern what can I use and what not.
Many victims mistakenly my way often, a Seitenstark and comprehensive bullying diary makes an impression on the court, which is certainly not so. And therefore the solution of the „paper roll“ of Alenfelder and his colleagues the solution. Using entries from the diary in the indictment, make sure that does not conflict with items and make an additional „paper roll“, which are shown clearly all acts of bullying, which makes more impression than 1000 pages on bullying diary.
Now to the case of the „main cashier, the LAG Mainz has the“ mission of the plaintiff against the decision of the Labor Mainz of 06.11.2008, Az: 9 Ca 777/08 … dismissed with costs. „(3)
The verdict:
„LAG, Mainz, 14.08.2009, 9 Sat 199/09, privacy violation – bullying.
Précaire
1) The appointment of the plaintiff against the ruling of the Labor Court of Mainz 06.11.2008, Az: 9 Ca 777/08 is charge dismissed.
2. The revision will not be allowed.
FACTS: The parties disagree on Appellate Procedure yet as to whether the defendant is required to pay a pain to the claimant in terms of the so-called bullying. For the presentation of undisputed facts in dispute and the arguments of the parties of First Instance will paint. § 69 paragraph 2 ArbGG Reference is made to the ruling of the Labor Mainz of 06.11.2008, Az: 9 Ca 777/08 (Fol. 82 ff d. A.).
By the said ruling has the labor – to the extent the appeal process is of interest – including the action on the request of the plaintiff, imposed on him for pain and suffering, the amount to the discretion of the court is dismissed, together with 5 percent interest above the base rate since pendens pay.
In support of the Labor Court has – run together -: A claim for pain and suffering of the plaintiff was neither in terms of violation of labor law obligations, the violation of an absolute right i. S. von § 823 Abs 1 BGB, the violation of a protective law i. p. v. § 823 para 2 BGB, even from the perspective of intentional injury immoral given. Although it should be noted that there are cases in which the individual, from acts or conduct of its employees as set out Work colleague, supervisor or employer considered by itself does not constitute violations that lead to overall view of the particular acts or practices, however, a treaty or legally protected injury, because its summary based on them could lead to the underlying structure and direction to an impairment of the protected right of the employee.
The employer ARE OF Conduct obligations to take into account and protect the rights, legal protection and interests of the employee. This precludes the degradation and Disregard of a worker. The latter had the right to have his health and his legal interests regardless of taking it from health threats, protected or psychological and it would not conduct is exposed, which is its object or effect that violated their dignity and creating an intimidating, hostile, degrading , humiliating or offensive environment is created.
Outcry in the country of work
The employer is in this context, especially for Protection of health and the personality of the worker undertakes, and his fault of his agents to as is attributable to his own fault. Based on these principles, a claim sheath of the plaintiff against the defendant because of his own misconduct, but also from the standpoint of misconduct Or vicarious agents out. Claims against the defendant because of the manager alleged conduct did not exist, because not even be clear why an insert constituted by the applicant outside the main cash exclusion or humiliation of his person, which could be considered a breach of duty or violation of personal rights.
The plaintiff himself had in an interview he described the view that he was treasurer and might be used as Treasurer. The defendant also called understandable reasons why it was still not come to any use of the plaintiff in the main ticket office. Also, a claim from the point as support for misconduct by agents of the defendants was ruled. As far as the plaintiff in his diary a description of various Encounters with persons have given, he has not explained what position dressed in the operation of the defendant. It is therefore not obvious that these individuals served up to the claimant and should be considered as accomplices. Likewise, the plaintiff had argued that it constituted events which were made with knowledge of his superiors or to their statement.
The verdict is called the plaintiff was served on 09.03.2009. He has appealed against that with the country’s Labor Court received on 06.04.2009 calling and pleading with them within the decision from 05/05/2009 until 08/06/2009 appeal, the extended deadline received a written statement dated 08.06.2009, the country’s Labor Court on the same day, well founded.
In support of his appeal, the applicant claims pursuant to the said pleading to which a supplement is made (Bl 110 ff claimed Elder), essentially.
Although I mentioned the fact of the contested ruling, the Labor disregarded in his decision, arguing that the plaintiff since October 2005 as no longer the main cash Chief cashier was used. The same applies to his claim that he was previously responsible for training in the main ticket office. The activities in the mutual-fund and principal were not exactly equivalent. The responsibility of the chief cashier was greater because they were dealing with much larger cash on hand. The distinction between the value of the business, it followed from the current trunk and wage agreement. The applicant was aware of no further use in the main ticket office in order to wear down and degrade him.
Already in 2005 the manager of the defendant in connection with a restructuring action against the plaintiff had said that he did not know what to do with the applicant should start over. Only because of its social data better then he had escaped. This had made the defendant an opportunity to train new employees in the cash office and use the plaintiff only in the mutual fund. Where the industrial tribunal’s decision was based on the fact that the applicant has failed to specify the location of the employees of the defendant who had made the remarks made by him at first instance, it should be noted that the defendant for any wrongdoing of their employees, whether they are superior or not Stand up (f1) and have their behavior as Agents must be attributed. S. was the first instance mentioned employees and managers of the defendant against the plaintiff technically and disciplinary superior and issue instructions.
The plaintiff applies to the ruling of the Labor Court of Mainz 6. November 2008, Az: 9 Ca 777/08 partially amend and ordered the defendant to be made to the plaintiff a compensation, which amount to the discretion of the court to pay, with interest amounting to 5 percentage points above the base rate since pendens (02.05.2008) too.
The defendant requested, dismiss the appeal. She defends the contested case in accordance with their appointment by letter of reply, 30.07.2009, in addition to the reference is made (Bl d. A., 128 et seq), as legally applicable. Following the restructuring of the funds in the areas of classic game / slot machines, the applicant in the main ticket office for the settlement of gaming machines had been used in the early shift. The Nichteinsatz the plaintiff in the context of late shifts in the main ticket office was due to understandable reasons. Due to the restructuring and of the collective bargaining agreement since 01.01.2007 entered into force, there would be the function of a Chief cashier no more. NA is also that the defendant is already in 2005 as part of restructuring measures by the plaintiff actually had wanted to separate. The plaintiff had not been raised, the person who claimed „Bullying acts“Allegedly made in attributable way.
Will also complement the rest of the pleadings exchanged between the parties and the annexes thereto reference is made.
Grounds:
I. The appeal of the plaintiff is admissible. The appeal is admissible as such. The appeal was also form and on time filed and justified.
II On the merits, however, has the appeal is not successful. The Labor Court on Payment for pain and suffering directed action dismissed with true justification. The Appeals Chamber follows the reasoning of the Labor and make it hereby gem. § 69 paragraph 2 ArbGG firm. The following additional observations led Berufungsvorbringen:
1. The Labor Court is also true of the shared principles of the Appellate Division of the Supreme Court, the liability of the employer in called „Bullying „cases assumed (particularly BAG 16.5.2007 -8 AZR 709/06- EzA 2002 § 611 BGB personality No. 6; modified 24.4.2008 -8 AZR 347/07- EzA § 611 BGB 2002 Personality No. 8).
Afterwards „Bullying“ is not a legal term and therefore no legal provision comparable to a self-claim basis for claims of an employee against his employer or superiors or colleagues. (a)
When an employee claims on the basis of concrete „bullying“ claims must be examined in each case whether the service used by the plaintiff in these individual cases, labor obligations, an absolute Right of the worker within the meaning of. § 823 Abs 1 BGB, one Protection Act within the meaning of. § 823 para 2 BGB hurt or injury within the meaning of immoral. § 826 BGB she has committed. In this context, it is important to note that there are cases in which the individual acts or practices set forth by the employee of his work colleagues, superiors or his employer regarded by itself does not constitute violations, but the overall view of the particular acts or practices of a contract – or legally protected injury causes, because of its summary on the basis of their underlying structure and lead direction to an impairment of a protected right of the worker.
The latter is especially the case when the abuse or unwanted conduct that violates the dignity of the worker and by Intimidating, hostile, degrading, humiliating or offensive featured environment is created. This corresponds to § 3 paragraph 3 AGG made definition of „harassment“, a Within the meaning of discrimination. § 1 AGG represents. Given an environment in principle, not by a unique but is created by a continuing behavior are to include all acts or practices that are attributable to the systematic process of creating a certain environment, in the analysis. Consequently, individual past actions / behaviors in the assessment must not be left unconsidered. Considering this is a liability for its own, or through organs of the employer (§ § 31, 89 BGB), breach of duty and a Liability for the employer after § 278 BGB attributable Duty by agents into account.
Since the employee who claims against his employer claims that the existence of the alleged misconduct, the burden of proof claims that he has in each case, the actions or measures from which he derives the alleged misconduct, specifically, indicating their temporal situation . denote Only then there is a review so as to establish whether the alleged transactions for themselves alone have seen or managed in the overall view of a law affecting the employee (BAG 24.4.2008, ibid.).
2. The applicant has limited its action to begin with, a so-called Bullying Diary presented, which contains what the Labor Court has already pointed to a large-scale well as accounts that lack any reference to the claims asserted. This applies for example for under the October 2007 operation, or the description of P. conversation with Mr. S. described on 15.2.2007 due to the remaining leave, which the framework of a normal, socially and rechtsadäqauten conversation does not exceed. This general reference to the said Appendix to the application does not meet the requirements for a sufficiently concretized (substantiated) of narrative. The procedural submissions made by a party must be intelligible by itself, must be substantiated on the permissible reference systems (see, for example Zöller / Greger, ZPO, 25th edition, § 130 para. 2253 para. 12 a seq.). This is particularly true when determining whether particular acts or practices used by itself or in the overall picture infringing nature of one who, because of a judgmental Product and balance of interests is made (BAG 24.4.2008, ibid.).
Moreover, a widespread lack of information also to have the operational function of the persons mentioned in the diary during operation. When compensation claims are also based on the fact that the employers themselves, but other workers in violation of any act or acts alleged to have committed, at least in an overall view Right hurtful nature who need the facts are presented, which should lead to a liability of the employer. Concerning the argument so far with the appointment takes the view that the defendant bad employer for any wrongdoing of its employees and this must be attributed as the behavior of agents, this is legally incorrect:
The employer is true for the culpable violation of contractual agents assigned to its protection duties, such as the obligation to protect the general personality or health conferred a. Necessary for a Liability after § 278 BGB is always that the wrongful act is in an inner material related to the tasks assigned by the debtor to the agents in terms of the contract. This is regularly only be the case if the agents from concrete give the employee the duty of care towards him or Reporting relationships have (BAG 16.5.2007 ibid.).
3. Where the plaintiff has released its submissions in the first instance or in a document dated 30/7/2007 of its appeal further, and in his diary bullying incidents will be specifically described in the defendant’s alleged involvement of the manager or the manager, which can be either individually or found in a synopsis of a personal rights infringement sufficiently in the above sense.
S) alleged by the plaintiff (contentious statement by the Executive of the defendants in October 2005 would, if it had been made because, undoubtedly related to a personnel action adaptation of the defendants, was ultimately reflected in an appropriate balancing of interests with the name list and the plaintiff was not affected was. Given the statement by the plaintiff claimed, however, is not a socially inadequate behavior, because it merely expresses the fact that the president saw the defendant given independently of the identity of the applicant’s reasons underlying an employment requirement is less than. That this is the intimidation, hostility, humiliation, humiliation or insult of the plaintiff and this was compared to a contempt expressed is not clear. In keeping with this that the BAG has assumed in its decision of 24.4.2008 (ibid.) believe that a dismissal for operational and not from the behavior of the employee or person is very obvious reasons, usually the personality the employee does not unlawfully violated.
Where the plaintiff out geared that he had been in October 2005 was no longer used in the main ticket office and also in the training were not involved, it can be assumed that this alleged work assignment was prompted by the defendants or their institutions / agents because it in this regard concerns organizational measures to control the workflow. The plaintiff, however, sets out not only that the issues raised by his duties as a contract of work was due, and held the alleged actual use is no longer entitled to under the law of the defendant’s Directorate. Instructions, however, who can move are entitled under the law and refer to the employer’s Directorate which is not clearly frivolous tendency to represent only in rare cases, a violation of personal rights (BAG 16.5.2007, ibid.). An oppressive tendency can not be inferred from the use of the plaintiff. The defendant, without which the plaintiff would be substantiated-challenged explained that with effect from 1.1.2007, the current structure of the checkouts was changed and the treasury of the main areas of treasury of the classic game and the gaming machines were brought together, this is a familiarization and training of staff and the applicant as a result of illness-related absences to date has not yet been incorporated. This is traceable to the defendant’s reasoning. This corresponds to the fact that the Labor-which has already been made, the applicant himself where in he his diary represented at the meeting described 28.2.2008 with Mr. S., the view was that he was Cashier and be used as a cashier. Where the plaintiff is not aimed at die-involvement in the training of other employees, should be added that in his diary found under the 20.7.2007 entry: „Today I have asked Mr D. Training in fund 1, the slot machines.
Where the plaintiff claims that in May 2008 he had been informed that he was the only employee in the checkout area, the numerical keys of the vault do not get this lack of narrative, who should have made this announcement so that a test to see if it this is a conduct of the defendant or one which it was responsible conduct of other employees should have acted, is not possible. The same applies to the alleged statement to the employees in the checkout area, the applicant confidential and internal processes (say more). Here is it explained to have been the person at which time this statement to which employees.
Even an overall view of the above, the alleged incidents can not be ascertained that this involved a systematic and purposeful approach to the degradation of the plaintiff.
4. If the appeal would ultimately geared to the fact that the employer is obliged under the duty of care to ensure that all employees-including each other respectfully, appropriately treated and either marginalized or discredited is true that the employer’s liability for damages not only with a positive action, but where there is a guarantee confidentiality, even from the standpoint of an omission into account movements (see BAG 16.5.2007, ibid., B II, 3) a) bb) of the reasons. This presupposes, however, that the `right` end add (f2) setting out employees that the employer or its organs from the violation of rights of the applicant by other employees had knowledge or, if he relies on it, the employer had no adequate organizational measures taken to prevent showing of legally protected injury, by which general organizational actions legal interest claimed by him injuries could have been prevented. On such statements is lacking.
III. The appeal was therefore dismissed by the plaintiff resulting from § 97 ZPO resulting expense. A revision of the basic authorization within the meaning of § 72 para 2 ArbGG does not exist.
Aftermath: The assertion „Bullying“ is not a legal concept “ contrary, the LAG Mainz clearly anti-European case law in which bullying is indeed a legal term. Thus, for example, Austria has enshrined a ‚ban bullying‘ in public service.
Since the AGG is in Europe since 2000, a Austrians are not better off as a German, but from these principles, we are unfortunately still far away. And is well known that European law over that of the Germans. German judges should get used to, finally, that they are part of the European legal system. “
An urgent letter to the EU is still followed, so that finally defines the EU as a legal concept of bullying for all European countries. For the victims then there is the possibility of „restricted application“, which also turn to European law will let us have too good.
I would give any bullying – victim of the tip, never relied solely on a harassment charge your diary or registrations thereof. And if you use items, erstmal examine her evidence carefully and let it read against a third party.
Experiments only the bullying – Diary in the context of the „bullying Alenfelder – paper web“ should be used and to gather documentary evidence, which should be attached in the indictment.
f1) In the original, it is said to stand „, just as in the case of“ claim end add „(f2). Both terms were changed.
1) http://harrygambler2009.wordpress.com/2009/07/31/mobbing-opfer-erhalt-30-000-euro-schmerzensgeld/
2) https://dieaktuelleantimobbingrundschau.wordpress.com/2010/01/22/chef-kundigt-mobberin/
Die-aktuelle-Antimobbingrundschau 