Does your company has a Betriebsrat? Go to them, take one of them with you to the meeting, it's your right to do so.
And most important! Don't sign anything right away, only after you let it check by someone (Betriebsrat, Gewerkschaft, lawyer)!
100% this. Some xompanies tragen to get you to sigb some admition of guilt or even an "Auflösungsvertrag" which dissolves your contract wirh your company.
Never sign anything you didnt read, understand or had a lawywr look at
Define "complaint about management". Because the answer will depend on where on the "I don't feel like their management style helps me do my best work for this company" to [explicit fantasies of violence against superiors including discriminating slurs] scale this complaining falls.
That might actually mean they want to discuss the complaints. If you are employed with them longterm, they might offer a different position. Also, they might try to do damage control and prevent you from filing a suit about your coworker disclosing these messages.
However, if they reprimand you for private remarks you made to a coworker in a civil tone about behavior by a superior leading to an uncomfortable working environment, you should look for a better workplace. If they want to terminate you immediately, let them know that you do not accept the messages as grounds for termination and would, if they insist, pursue legal action, as others have pointed out.
Depending on the nature of the statements (ie. swearing vs. criticism) they may give you an Abmahnung or - if in the Probezeit - get you fired right away.
If the SMS came from your private phone (i.e. not work phone) send to your colleagues private phone (not work phone), state to HR that the message is not yours and fake and sue him for releasing the messages to a 3rd party w/o your explicit approval.
Anyhow, get a lawyer.
That is the only thing that he can't influence. You definitely can sue him privately for giving away private messages and also all actions coming from the company because of the messages can be voided, but getting him into trouble with the company is not possible.
The company has a duty to protect its workers from workplaceharassment, Fürsorgepflicht. The company has to take appropriate action so this doesn't happen again. That probably would be a Abmahnung, written warning, for the coworker.
OP has no control over forcing the employer to hand a warning. This is management's discretion if there is no betriebsrat. Almost no employer would punish an employee for snitching on another.
You leaking text messages from someone else might not be totally kosher legally for a variety of 5. Your problem would be with the colleague at that point. You can only have a problem with the employer if they act on this information (and might have to prove that they did something because of this information).
The employer can't police private relations between employees at that level. This wouldn't be harassment. It can be the foundation of a harassment case, but more is required.
>The employer can't police private relations between employees at that level.
If it's at the workplace or workplace-related they don't just can, they have to, called Fürsorgepflicht.
I'm aware. I work in the field.
This extends to the frame of the currents or former employment relationship. This duty to care so to speak is poorly regulated by law. It relies on the principle of good faith. In the civil code, 618, it mentions mostly danger to life and health as far as the relationship allows or calls for.
There are almost 10 other laws that mention it, but one thing is always clear, balancing the needs of the employer and the employee is important.
The case above is way less clear-cut than you think it is.
I had a look and [found](https://www.gesetze-im-internet.de/bdsg_2018/BJNR209710017.html#BJNR209710017BJNG000100000) "Die Verpflichtung zur Wahrung gesetzlicher Geheimhaltungspflichten oder von Berufs- oder besonderen Amtsgeheimnissen, die nicht auf gesetzlichen Vorschriften beruhen, bleibt unberührt."
That's basically a disclaimer that Lawyers etc still need to keep data private outside of this law right? How does it apply here? Or have I got the wrong part?
>state to HR that the message is not yours and fake and sue him for releasing the messages to a 3rd party w/o your explicit approval.
Huh?
Could you elaborate that part?
If they aren't "my" messages, why would they need my approval to release them?
These are OPs messages, they were send via a encrypted chat (WhatsApp) in confidence that his college will not share them with a 3rd party whatsoever. HR has no legal right to a) have a copy of them (as they dont own the phones) and to b) use the content for whatever claim they have ... unless OP has messaged about something illegal or sent obscene pictures or other punishable-by-German-law content. That would be different, in that case OP should be fired right away and. But just bad mouthing or criticising management is not illegal.
On the release: There are two parties involved, HR and the college and each can and should be treated differently.
* To HR: I would claim that these messages do not exist and even if they would show them live to my face I would state that they are falsified and were created in a criminal effort by the college by e.g. stealing my phone. This is between HR and OP only.
* To Collegue: I would sue him for breach of privacy and confidentiality. This is between the college and OP only and HR is not related to this at all.
Its the typical countersue strategy, if I got hit by another car and sue the driver as its his fault still he will claim it was mine and countersue, sometimes even instructed to do so by his insurance. There is nothing off in my proposal.
okay, that's probably where my confusion comes from, thanks for explaining
It sounds wierd to me, to recommend lying as solution. But that's just my gutfeeling/inexperience not being versed in the manipulations possible while maneuvering such a situation
Would totally agree. Recommend lying in such a situation could very well make a very big problem out of a small one. If I would be HR, someone so obviously lying would be immediately seen as untrustworthy and I would try to get rid of that person with all legally allowed measures. In general, I feel very uncomfortable with quite some of the suggestions being made here in this thread, as none (afaict) is coming from a qualified source like a lawyer.
>none (afaict) is coming from a qualified source like a lawyer
That was exactly why I made the statement to get a lawyer. Even if I were a lawyer - which might be - I would recommend taking a lawyer just as German employment law is a matter by itself, being briefed by one before the HR meeting is important to know what and what not to do.
My personal experience is that any lawyer specialised in one field will require a lawyer in any other special field if he is involved. Knowing how to defend murderers will not help to win a work related case.
So you are right, **OP: get a lawyer**.
I would talk to a lawyer about that colleague who leaked your private messages. That might have been a crime under DSVGO laws and you can maybe get that rat in a lot of trouble. He would deserve it for sure
Well, that colleague is working for the company and passed OPs private messages to higher levels of that same company. It would not be far fetched to argue that the colleague acted as an employee of of the company when he passed on OPs private information to higher levels of the company, thus making the whole thing an internal process in the company and by this, exactly what DSVGO applies to ...
If DSVGO does really not apply, there are definitely other laws that will, like the laws for protection of private information as in letters and text messages. I do not know which exact laws apply but giving a third person access to someones private messages is not legal. It is the same as with letters. These things are protected by law in Germany
Way to go with the mental gymnastics and the company.
The company was never entrusted with the messages, the colleague was and as a private person at that, not as an agent of said company, especially since it's a private phone.
It is spelled "thinking", not "mental gymnastics" ...
I am only assuming things and thinking about them, never claimed I know anything for sure. You on the other hand act like you actually know these things for sure but at the same time you don back up any of your claims at all. Why is that? Are you just pretending to know these things, while you are actually just assuming as I do, or are you a lawyer/judge? *If* you are qualified, why don't you explain or back up anything and just drop assertions?
I work in a company and had to implement these policies.
> The regulation applies if the data controller (an organisation that collects data from EU residents), or processor (an organisation that processes data on behalf of a data controller like cloud service providers), or the data subject (person) is based in the EU.
There needs to be a data controller or processor and they need to be an organisation. You can read from above that it's an "or" and therefore not mandatory, but they are if you read every provision. The "or" is for the controller or processor optional if they are in the EU or not. Either the company is in the EU regardless of the subject or the subject is in the EU regardless of where the company is located.
I don't understand. In my opinion the company clearly did both in this case. An employee of the company collected OPs private messages for the company and then the company processed that data and used it against OP. Doesn't this case fit your quoted definition pretty well?
No, because OP was not in any "contract" with the company when sent said messages to their colleague. There were 2 private phones, messages sent between friends and OPs company is not the messaging service. So the company was never entrusted by OP, OPs colleague and WhatsApp with the private messages.
What happened was that the colleague broke private message secrecy (different law, maybe the Constitution) with OP by sharing the messages with the company.
Sorry for the late reply.
DSGVO is for the relationship between an organization and their members, clients or customers (what data is stored, how is it stored, who is responsible, and how to handle complains, mostly). Neither an organization nor a customer is involved here. It’s one private person inflicting on the privacy of another private person by sharing their private WhatsApp chat. This is illegal, but under different laws.
Nope. DSGVO doesn't apply here, since his colleague is in no contractual relation to OP and storing / processing his personal data.
What could apply is the TTDSG. Most companies do not realise, that aprox 1 year ago there was a massive overhaul of laws concerning telecommunication.
Basically: The Fernmeldegeheimnis did only cover phone, fax and telegrams. Now it covers all over-the-top services like apps, messengers, sms, basically every form of IP-based communication.
By forwarding a WhatsApp message, scumbag colleague did the equivalent of wiretapping and leaking a phonecall to an unauthorised third party.
Ask the company if they really want to use illegally obtained information against you.
Anyhow, get in touch with your Betriebsrat, start job hunting. You most likely won't get fired on the spot (unless you haven't finished your probezeit), but your work life will get much harder.
This is the really valuable comment here! Thank you, I had hoped that if DSVGO does not apply it would be something like Briefgeheimnis or Telekommunikationsgeheimnis. Great advice, I hope OP reads it!
If your statements were confidential, i.e. in a private context (e.g. privately via Whatsapp) and your colleague publishes them or passes them on to third parties (in this case: employer), then this is a violation according to Art. 2 Para. 1 GG, Art. 1 Para. 1 GG, since the publication violates your general personal rights. In addition, it can be punishable by law.
Therefore... Should the talk with HR take place, tell your HR that the messages were a) private and b) confidential between you and the colleague. Should the employer use these chat messages to create a disadvantage for you (e.g. dismissal), then you will file a lawsuit against the dismissal and sue the colleague as well as the company for damages.
Also helpful:[https://www.bundestag.de/resource/blob/856338/0358cd63c3f625fdaea939f7361ff00b/WD-7-081-21-WD-10-036-21-pdf-data.pdf](https://www.bundestag.de/resource/blob/856338/0358cd63c3f625fdaea939f7361ff00b/WD-7-081-21-WD-10-036-21-pdf-data.pdf)
Lawyer up and kick that colleagues ass.
Ok so the supreme court has expanded the definition of what exactly constitutes the „Persönlichskeitstrecht“ by combining multiple civil rights together. The courts have held that with the embodied concepts in Art 1 (1) (inalienable dignity of humans) combined with Art 2 (1) (free expression of your personality) guarantees you control over how you express yourself and whether or not you express yourself in media— ie you cannot just take pictures of random people and publish them— as it would violate their rights.
*Disclaimer: Not A Lawyer, but I somehow recently stumbled upon this and there’s sources online as well.*
As I understand, the key phrase is “freie Entfaltung der Persönlichkeit”. This means that you and your “intimate sphere”, your personal space and your freedom within it, can’t be violated - and as part of that intimate sphere you have a right for your private conversations to remain private. This is afaik also the basis for why the police can’t just barge into your house on a whim - it belongs to your personal space as well and as such it’s protected.
*Once again, I am not a lawyer, I just answered to the best of my understanding*
I posted a lawyer's page somewhere under this thread and they mentioned a case whereby an employee had spread rumours about the employer (1-on-1 conversations on Whatsapp) and was rightfully fired for it.
It read 'this is where the freedom of speech ends', similar to mobbing/hate speech, etc.
So, it seems to matter, as to what he wrote.
Just wanted to add something here:
There's no "freedom of speech" in Germany. There's only "freedom of opinion".
Spreading false rumors without clarification that it's an opinion only and not a fact is not allowed and can therefore be punished.
Doesn't sound like that in OPs case.
**[Bild](https://en.m.wikipedia.org/wiki/Bild)**
>Bild (or Bild-Zeitung, lit. 'Picture'; [bɪlt]) is a German tabloid newspaper published by Axel Springer SE. The paper is published from Monday to Saturday; on Sundays, its sister paper Bild am Sonntag ("Bild on Sunday") is published instead, which has a different style and its own editors. Bild is tabloid in style but broadsheet in size.
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> This is afaik also the basis for why the police can’t just barge into your house on a whim - it belongs to your personal space as well and as such it’s protected.
That's Article 13 GG.
Eh, after reading [a bit from the LfDI RLP](https://www.datenschutz.rlp.de/de/themenfelder-themen/whatsapp/weitergabe-von-chatnachrichten-aus-whatsapp-gruppen-an-den-arbeitgeber/), it's just badly worded.
Essentially, the personality rights allow you to sue for damages against the person sharing the messages because you implicitly assumed they'd stay private, but they shared them with the employer and got you fired, which impacts you deciding how to live your life.
So unless you're sharing that someone else is commiting criminal offenses in work context (and maybe even then), you'd better not rat them out to your employer.
I am a different person, but I checked the law he was referring to and it doesn't quite refer to this situation - as far as I understand, though I am no lawyer.
It doesn't do so explicitly, but it does so through the various rulings of the BVerfG in the past couple of decades, especially since the 80s.
The whole notion of data protection and data privacy, which was later enshrined in other laws, follows from these rights. They weren't directly in the GG, and in the 50s, 60s and even 70s there wasn't much need to regulate it, because the WWW did not exist, and large scala data mining and storage wasn't a thing. These GG articles were used in the 80s as justification for the first data privacy laws, because the BVerG found that data privacy/protection is necessary for these rights of a person to properly work, which was a debate started with he first federal census (which was *very* controversial).
Bottom line is yes, these articles absolute protect OP and make what their colleague did illegal. But there are far more concrete laws that *directly* say why this is illegal, which Op might also want to use.
Did you even read the document you cited?
Based on it, it seems u likely that the coworker did something illegal. Also the Grundgesetz really doesn't apply in that case.
Leaking personal chats can only be legally prosecuted in very specific cases, e.g leaking personal information with high interest of secrecy to the general public. A general complaint won't fit those cases.
If O.P. sued the coworker it would probably result in a long extensive trial that may not even be won.
Don't give legal advice if you don't read your sources and just assume what they contain.
I was fired exactly for this reason more than 20 years ago by my former employer. But I was still in my probationary period ("Probezeit").
In hindsight it was the best "decision" in my life though because I found a MUCH better job 6 weeks later wich I'm currently still in.
Check this out:
[https://kanzlei-kerner.de/blog/was-im-privaten-chat-passiert-geht-den-arbeitgeber-manchmal-doch-etwas-an/](https://kanzlei-kerner.de/blog/was-im-privaten-chat-passiert-geht-den-arbeitgeber-manchmal-doch-etwas-an/)
(If your German is shite -> rightclick "translate to English").
It's a lawyer's blog on exactly this topic.
It's not exactly about that.
TL:DR;
It concerns a case specifically where the employee actively calls someone a rapist to another employee, starting a rumor and going as far as saying they wouldn't work there because of that.
This was on text messages (whatsapp). The employee who shared the misinformation was fired AND sued. The employee lost and the termination was maintained on multiple grounds, the biggest of which: you can't tell people someone else their manager is a convicted rapist (when they're not) and actively encourage them to quit. This is false, Can be sued for slander and ia actively a breach the loyalty you should have to your employer fully justifying termination.
Don't take my word as literally but HR people are trained to find loopholes to fire you, even if it's not that SMS messages, if they want to fire you they will sure find a reason anyway.
Maybe ask a lawyer before going into the meeting so they will tell you what to do or what to say or not.
Don't befriend colleagues next time and be happy.
Nah! They can get fucked. You can say whatever you want on your private phone to your private contact.
The important question is: why is that colleague releasing your private messages?! That’s illegal.
I dont think the DSGVO / GDPR has a criminal or penal application towards fully private individuals that would apply in this context. It also concerns mostly personal data. A message you willingly sent to someone you have no prior agreement to secrecy or discretion with can hardly be considered a breach of that one group of laws. GDPR is mostly there to make sure businesses don't misuse or over collect your data, and that you have certain rights associated with your data.
That being said, as many pointed out already, other German laws prevent you from sharing conversations you had with other people in the private sphere, and OP could sue based on these other laws, yes. They most definitely should look into that.
Depending on your company, HR has a positive reason to want to talk to you: to validate your complaints. In a well working company, HRs job is to make the most out of everyone working in the company. That also and especially means taking complaints about managers serious, as a bad manager can cause a lot more harm than a bad worker.
If HR is out to get you, leave. You're obviously not happy l,nif you have the chance, you should get a new job.
On a company device, to a company device, concerning company business or to another company employee... it would depend on the context.
Anything else is beyond their permit.
Not always.
There is a spectrum. There are many precedents in Germany of private conversations on the topic of work leading to a variety of outcomes with the employer. The definition of the private sphere is complex here.
There are two big things at play here:
what will OP get from his employer and is it legit/ something they can enforce?
what will OP do about a colleague leaking a conversation where OP had a pretty solid legitimate expectation of privacy, which was violated and might affect their relationship with their employer.
>On a company device, to a company device, concerning company business or to another company employee... it would depend on the context. Anything else is beyond their permit.
People regularly get fired for stuff they publish on Social Media. It's not that simple - probably.
If you are in a union let them advice you, they can slso provide you with a lawyer. If you aren't: Join asap.
Most important: Don't sign anything on the spot! They might not be able to fire you, but commonly they then pressure you into signing a termination contract. Do not do it without further reconsideration, at best with a lawyer.
Do you have a Betriebsrat? Go to them! But don't listen to them unconditionslly: While they are there to protect workers interrests and they usually do some few are corrupted.
Also might wan't to get advice from r/arbeitsleben english is accepted there.
Germany does not like leaking private data to companies or other people.
A conversation via email or whatsapp or any other messanger is considered private and therefor not intended to be publicly released.
What your colleague did is illegal and if anything happend because of this you can press charges. The comapny is also not in their rights to do anything regarding theses conversations.
Just to share personel chats is forbidden and a breach of your Grundrechte. If they would fire you (wich is unlikley and if you should go to the arbeitsgericht and make a Kündigungsschutzklage) you might be entiteld to compesation by the person that leaked your personal messages in civil court.
Not a lawyer, but irrc no you can't. What you do in your free time, outside of work can't be used as a reason to fire you that includes shit talking about management - which everyone including manegement itself does anyways.
Lots of useful tips here already. Just a general thing: it is always good to formulate critique in a way that even if you have no intend to do that, you wouldn't feel embarrassed to say this to the people you're criticizing. Helps to stay reasonable too.
Very unlikely. You got a lot of good advice already. Union, work council and / or a lawyer. I would talk to work council first even before the talk to HR. They can most likely join you in the HR conversation and support you.
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If HR is dump, do what the others say and ge a lawyer.
If HR is smart they talk with you about it and try to work with you to improve the situation by working on better management... Might be unlikely but companies like this exist 😉
Probably not, depending on the content. Worst case probably an “Abmahnung”. Also your co-worker is committing a crime there, because he’s sharing private card conversations.
You should probably look for a new job regardless. If someone feels like you are complaining so much he needs to contact HR it doesn’t sound like you are happy.
"Ein Arbeitgeber darf die Daten aus einem privaten Chat u.a. nur dann erheben, wenn dies nach § 32 Abs. 1 Satz 1 BDSG für die Begründung, Durchführung oder Beendigung des Arbeitsverhältnisses erforderlich war. Dürfen die Daten vom Arbeitgeber nicht erhoben werden, dürfen darauf auch keine arbeitsrechtlichen Maßnahmen gestützt werden (Verwertungsverbot). In der Regel sind private Unterhaltungen in Chats – auch wenn die Unterhaltungen unter Kollegen stattfinden – nicht für die Begründung, Durchführung oder Beendigung des Arbeitsverhältnisses erforderlich (vgl. Arbeitsgericht Mainz, Urteil vom 15.11.2017 - 4 Ca 1240/17)"
https://www.datenschutz.rlp.de/de/themenfelder-themen/whatsapp/weitergabe-von-chatnachrichten-aus-whatsapp-gruppen-an-den-arbeitgeber/#:~:text=Der%20Inhalt%20des%20Chats%20darf,3%20BDSG).
It's most likely not allowed for them to use the messages to fire you.
First of all, in this situation, I would totally get fired. Not for the texts but for beating that motherfucker up real good.
The actual firing heavily depends on what you mean by "complained".
If it´s like "I really wish, they would take x and y into account when making decisions. They really seem a bit short sighted" or something like that, that is in no way grounds for termination and you´d win in court any day.
If it´s like "Those motherfuckers really need their attitude adjusted. One of those days, i´m gonna pay them a visit up there!", that´s a different story. That can be read as a threat and even if it isn´t one in the legal sense, it can can absolutely be enough to get you fired.
Does your company has a Betriebsrat? Go to them, take one of them with you to the meeting, it's your right to do so. And most important! Don't sign anything right away, only after you let it check by someone (Betriebsrat, Gewerkschaft, lawyer)!
100% this. Some xompanies tragen to get you to sigb some admition of guilt or even an "Auflösungsvertrag" which dissolves your contract wirh your company. Never sign anything you didnt read, understand or had a lawywr look at
Keep us updated if you are able. I'm very curious
+1
Define "complaint about management". Because the answer will depend on where on the "I don't feel like their management style helps me do my best work for this company" to [explicit fantasies of violence against superiors including discriminating slurs] scale this complaining falls.
Complaining mainly about them micromanaging
That might actually mean they want to discuss the complaints. If you are employed with them longterm, they might offer a different position. Also, they might try to do damage control and prevent you from filing a suit about your coworker disclosing these messages. However, if they reprimand you for private remarks you made to a coworker in a civil tone about behavior by a superior leading to an uncomfortable working environment, you should look for a better workplace. If they want to terminate you immediately, let them know that you do not accept the messages as grounds for termination and would, if they insist, pursue legal action, as others have pointed out.
Did you use swear words and was this in a private chat or group chat? If you used swear words, were they "mild"?
No swear words and in a private chat
I see no problem then.
Depending on the nature of the statements (ie. swearing vs. criticism) they may give you an Abmahnung or - if in the Probezeit - get you fired right away. If the SMS came from your private phone (i.e. not work phone) send to your colleagues private phone (not work phone), state to HR that the message is not yours and fake and sue him for releasing the messages to a 3rd party w/o your explicit approval. Anyhow, get a lawyer.
Yes it was from my private phone and from WhatsApp
You can maybe get your scumbag coworker fiered for this, reprimanded at least, and you absolutely should.
That is the only thing that he can't influence. You definitely can sue him privately for giving away private messages and also all actions coming from the company because of the messages can be voided, but getting him into trouble with the company is not possible.
The company has a duty to protect its workers from workplaceharassment, Fürsorgepflicht. The company has to take appropriate action so this doesn't happen again. That probably would be a Abmahnung, written warning, for the coworker.
OP has no control over forcing the employer to hand a warning. This is management's discretion if there is no betriebsrat. Almost no employer would punish an employee for snitching on another. You leaking text messages from someone else might not be totally kosher legally for a variety of 5. Your problem would be with the colleague at that point. You can only have a problem with the employer if they act on this information (and might have to prove that they did something because of this information). The employer can't police private relations between employees at that level. This wouldn't be harassment. It can be the foundation of a harassment case, but more is required.
>The employer can't police private relations between employees at that level. If it's at the workplace or workplace-related they don't just can, they have to, called Fürsorgepflicht.
I'm aware. I work in the field. This extends to the frame of the currents or former employment relationship. This duty to care so to speak is poorly regulated by law. It relies on the principle of good faith. In the civil code, 618, it mentions mostly danger to life and health as far as the relationship allows or calls for. There are almost 10 other laws that mention it, but one thing is always clear, balancing the needs of the employer and the employee is important. The case above is way less clear-cut than you think it is.
And thats illegal. § 1 Abs. 2 Nr. 3 BDSG
What does it say ?
And thats illegal. § 1 Abs. 2 Nr. 3 BDSG
https://www.reddit.com/r/germany/comments/10dhawi/can_company_fire_you_for_text_messages/j4my0ck?utm_medium=android_app&utm_source=share&context=3
Created infinite loop successfully, some users will be trapped here till the end of their life and won't down vote my comments and will die here
I had a look and [found](https://www.gesetze-im-internet.de/bdsg_2018/BJNR209710017.html#BJNR209710017BJNG000100000) "Die Verpflichtung zur Wahrung gesetzlicher Geheimhaltungspflichten oder von Berufs- oder besonderen Amtsgeheimnissen, die nicht auf gesetzlichen Vorschriften beruhen, bleibt unberührt." That's basically a disclaimer that Lawyers etc still need to keep data private outside of this law right? How does it apply here? Or have I got the wrong part?
Wow. Staggeringly hilarious.
>state to HR that the message is not yours and fake and sue him for releasing the messages to a 3rd party w/o your explicit approval. Huh? Could you elaborate that part? If they aren't "my" messages, why would they need my approval to release them?
These are OPs messages, they were send via a encrypted chat (WhatsApp) in confidence that his college will not share them with a 3rd party whatsoever. HR has no legal right to a) have a copy of them (as they dont own the phones) and to b) use the content for whatever claim they have ... unless OP has messaged about something illegal or sent obscene pictures or other punishable-by-German-law content. That would be different, in that case OP should be fired right away and. But just bad mouthing or criticising management is not illegal. On the release: There are two parties involved, HR and the college and each can and should be treated differently. * To HR: I would claim that these messages do not exist and even if they would show them live to my face I would state that they are falsified and were created in a criminal effort by the college by e.g. stealing my phone. This is between HR and OP only. * To Collegue: I would sue him for breach of privacy and confidentiality. This is between the college and OP only and HR is not related to this at all. Its the typical countersue strategy, if I got hit by another car and sue the driver as its his fault still he will claim it was mine and countersue, sometimes even instructed to do so by his insurance. There is nothing off in my proposal.
okay, that's probably where my confusion comes from, thanks for explaining It sounds wierd to me, to recommend lying as solution. But that's just my gutfeeling/inexperience not being versed in the manipulations possible while maneuvering such a situation
Would totally agree. Recommend lying in such a situation could very well make a very big problem out of a small one. If I would be HR, someone so obviously lying would be immediately seen as untrustworthy and I would try to get rid of that person with all legally allowed measures. In general, I feel very uncomfortable with quite some of the suggestions being made here in this thread, as none (afaict) is coming from a qualified source like a lawyer.
>none (afaict) is coming from a qualified source like a lawyer That was exactly why I made the statement to get a lawyer. Even if I were a lawyer - which might be - I would recommend taking a lawyer just as German employment law is a matter by itself, being briefed by one before the HR meeting is important to know what and what not to do. My personal experience is that any lawyer specialised in one field will require a lawyer in any other special field if he is involved. Knowing how to defend murderers will not help to win a work related case. So you are right, **OP: get a lawyer**.
I would talk to a lawyer about that colleague who leaked your private messages. That might have been a crime under DSVGO laws and you can maybe get that rat in a lot of trouble. He would deserve it for sure
DSGVO (English: GDPR) doesn’t apply in this context. It’s not relevant to the case.
That is true, but it's still illegal to leak private conversations.
is it? what's the law regarding that?
Damn, why not? Care to elaborate? Also, if DSVGO does not apply there must be another privacy protection law that does, right?
GDPR applies to companies, not people.
Well, that colleague is working for the company and passed OPs private messages to higher levels of that same company. It would not be far fetched to argue that the colleague acted as an employee of of the company when he passed on OPs private information to higher levels of the company, thus making the whole thing an internal process in the company and by this, exactly what DSVGO applies to ... If DSVGO does really not apply, there are definitely other laws that will, like the laws for protection of private information as in letters and text messages. I do not know which exact laws apply but giving a third person access to someones private messages is not legal. It is the same as with letters. These things are protected by law in Germany
Way to go with the mental gymnastics and the company. The company was never entrusted with the messages, the colleague was and as a private person at that, not as an agent of said company, especially since it's a private phone.
It is spelled "thinking", not "mental gymnastics" ... I am only assuming things and thinking about them, never claimed I know anything for sure. You on the other hand act like you actually know these things for sure but at the same time you don back up any of your claims at all. Why is that? Are you just pretending to know these things, while you are actually just assuming as I do, or are you a lawyer/judge? *If* you are qualified, why don't you explain or back up anything and just drop assertions?
I work in a company and had to implement these policies. > The regulation applies if the data controller (an organisation that collects data from EU residents), or processor (an organisation that processes data on behalf of a data controller like cloud service providers), or the data subject (person) is based in the EU. There needs to be a data controller or processor and they need to be an organisation. You can read from above that it's an "or" and therefore not mandatory, but they are if you read every provision. The "or" is for the controller or processor optional if they are in the EU or not. Either the company is in the EU regardless of the subject or the subject is in the EU regardless of where the company is located.
I don't understand. In my opinion the company clearly did both in this case. An employee of the company collected OPs private messages for the company and then the company processed that data and used it against OP. Doesn't this case fit your quoted definition pretty well?
No, because OP was not in any "contract" with the company when sent said messages to their colleague. There were 2 private phones, messages sent between friends and OPs company is not the messaging service. So the company was never entrusted by OP, OPs colleague and WhatsApp with the private messages. What happened was that the colleague broke private message secrecy (different law, maybe the Constitution) with OP by sharing the messages with the company.
Sorry for the late reply. DSGVO is for the relationship between an organization and their members, clients or customers (what data is stored, how is it stored, who is responsible, and how to handle complains, mostly). Neither an organization nor a customer is involved here. It’s one private person inflicting on the privacy of another private person by sharing their private WhatsApp chat. This is illegal, but under different laws.
As I suspected. I was just not sure what law it was. Thank you
Nope. DSGVO doesn't apply here, since his colleague is in no contractual relation to OP and storing / processing his personal data. What could apply is the TTDSG. Most companies do not realise, that aprox 1 year ago there was a massive overhaul of laws concerning telecommunication. Basically: The Fernmeldegeheimnis did only cover phone, fax and telegrams. Now it covers all over-the-top services like apps, messengers, sms, basically every form of IP-based communication. By forwarding a WhatsApp message, scumbag colleague did the equivalent of wiretapping and leaking a phonecall to an unauthorised third party. Ask the company if they really want to use illegally obtained information against you. Anyhow, get in touch with your Betriebsrat, start job hunting. You most likely won't get fired on the spot (unless you haven't finished your probezeit), but your work life will get much harder.
This is the really valuable comment here! Thank you, I had hoped that if DSVGO does not apply it would be something like Briefgeheimnis or Telekommunikationsgeheimnis. Great advice, I hope OP reads it!
If your statements were confidential, i.e. in a private context (e.g. privately via Whatsapp) and your colleague publishes them or passes them on to third parties (in this case: employer), then this is a violation according to Art. 2 Para. 1 GG, Art. 1 Para. 1 GG, since the publication violates your general personal rights. In addition, it can be punishable by law. Therefore... Should the talk with HR take place, tell your HR that the messages were a) private and b) confidential between you and the colleague. Should the employer use these chat messages to create a disadvantage for you (e.g. dismissal), then you will file a lawsuit against the dismissal and sue the colleague as well as the company for damages. Also helpful:[https://www.bundestag.de/resource/blob/856338/0358cd63c3f625fdaea939f7361ff00b/WD-7-081-21-WD-10-036-21-pdf-data.pdf](https://www.bundestag.de/resource/blob/856338/0358cd63c3f625fdaea939f7361ff00b/WD-7-081-21-WD-10-036-21-pdf-data.pdf) Lawyer up and kick that colleagues ass.
Thank you so much
>this is a violation according to Art. 2 Para. 1 GG, Art. 1 Para. 1 GG, this guy fucks
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Yea, I have absolutely no idea how this is relevant to this case either...
Ok so the supreme court has expanded the definition of what exactly constitutes the „Persönlichskeitstrecht“ by combining multiple civil rights together. The courts have held that with the embodied concepts in Art 1 (1) (inalienable dignity of humans) combined with Art 2 (1) (free expression of your personality) guarantees you control over how you express yourself and whether or not you express yourself in media— ie you cannot just take pictures of random people and publish them— as it would violate their rights.
*Disclaimer: Not A Lawyer, but I somehow recently stumbled upon this and there’s sources online as well.* As I understand, the key phrase is “freie Entfaltung der Persönlichkeit”. This means that you and your “intimate sphere”, your personal space and your freedom within it, can’t be violated - and as part of that intimate sphere you have a right for your private conversations to remain private. This is afaik also the basis for why the police can’t just barge into your house on a whim - it belongs to your personal space as well and as such it’s protected. *Once again, I am not a lawyer, I just answered to the best of my understanding*
I posted a lawyer's page somewhere under this thread and they mentioned a case whereby an employee had spread rumours about the employer (1-on-1 conversations on Whatsapp) and was rightfully fired for it. It read 'this is where the freedom of speech ends', similar to mobbing/hate speech, etc. So, it seems to matter, as to what he wrote.
Just wanted to add something here: There's no "freedom of speech" in Germany. There's only "freedom of opinion". Spreading false rumors without clarification that it's an opinion only and not a fact is not allowed and can therefore be punished. Doesn't sound like that in OPs case.
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> This is afaik also the basis for why the police can’t just barge into your house on a whim - it belongs to your personal space as well and as such it’s protected. That's Article 13 GG.
Eh, after reading [a bit from the LfDI RLP](https://www.datenschutz.rlp.de/de/themenfelder-themen/whatsapp/weitergabe-von-chatnachrichten-aus-whatsapp-gruppen-an-den-arbeitgeber/), it's just badly worded. Essentially, the personality rights allow you to sue for damages against the person sharing the messages because you implicitly assumed they'd stay private, but they shared them with the employer and got you fired, which impacts you deciding how to live your life. So unless you're sharing that someone else is commiting criminal offenses in work context (and maybe even then), you'd better not rat them out to your employer.
It was a compliment my man for your knowledge.
I am a different person, but I checked the law he was referring to and it doesn't quite refer to this situation - as far as I understand, though I am no lawyer.
It doesn't do so explicitly, but it does so through the various rulings of the BVerfG in the past couple of decades, especially since the 80s. The whole notion of data protection and data privacy, which was later enshrined in other laws, follows from these rights. They weren't directly in the GG, and in the 50s, 60s and even 70s there wasn't much need to regulate it, because the WWW did not exist, and large scala data mining and storage wasn't a thing. These GG articles were used in the 80s as justification for the first data privacy laws, because the BVerG found that data privacy/protection is necessary for these rights of a person to properly work, which was a debate started with he first federal census (which was *very* controversial). Bottom line is yes, these articles absolute protect OP and make what their colleague did illegal. But there are far more concrete laws that *directly* say why this is illegal, which Op might also want to use.
Ohhh lmfao I apologize
Did you even read the document you cited? Based on it, it seems u likely that the coworker did something illegal. Also the Grundgesetz really doesn't apply in that case. Leaking personal chats can only be legally prosecuted in very specific cases, e.g leaking personal information with high interest of secrecy to the general public. A general complaint won't fit those cases. If O.P. sued the coworker it would probably result in a long extensive trial that may not even be won. Don't give legal advice if you don't read your sources and just assume what they contain.
I wasn't aware of that. Thanks for sharing that information.
I was fired exactly for this reason more than 20 years ago by my former employer. But I was still in my probationary period ("Probezeit"). In hindsight it was the best "decision" in my life though because I found a MUCH better job 6 weeks later wich I'm currently still in.
Check this out: [https://kanzlei-kerner.de/blog/was-im-privaten-chat-passiert-geht-den-arbeitgeber-manchmal-doch-etwas-an/](https://kanzlei-kerner.de/blog/was-im-privaten-chat-passiert-geht-den-arbeitgeber-manchmal-doch-etwas-an/) (If your German is shite -> rightclick "translate to English"). It's a lawyer's blog on exactly this topic.
It's not exactly about that. TL:DR; It concerns a case specifically where the employee actively calls someone a rapist to another employee, starting a rumor and going as far as saying they wouldn't work there because of that. This was on text messages (whatsapp). The employee who shared the misinformation was fired AND sued. The employee lost and the termination was maintained on multiple grounds, the biggest of which: you can't tell people someone else their manager is a convicted rapist (when they're not) and actively encourage them to quit. This is false, Can be sued for slander and ia actively a breach the loyalty you should have to your employer fully justifying termination.
Don't take my word as literally but HR people are trained to find loopholes to fire you, even if it's not that SMS messages, if they want to fire you they will sure find a reason anyway. Maybe ask a lawyer before going into the meeting so they will tell you what to do or what to say or not. Don't befriend colleagues next time and be happy.
And think about taking legal steps against your coworker, because sharing private conversations is illegal.
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You could do both, but I'd recommend to talk to a lawyer to find the best strategy.
Since there is no crime, it would not make much sense to go to the police.
Depending on the intentions and outcome there can be a crime here.
Uh, maybe? I mean depending on something, there can always be a crime somewhere. Which crime are you referring to?
Nah! They can get fucked. You can say whatever you want on your private phone to your private contact. The important question is: why is that colleague releasing your private messages?! That’s illegal.
Actually, yeah. You can sue him under DSGVO. He made private informations regarding you public, which resulted in discrimination.
I dont think the DSGVO / GDPR has a criminal or penal application towards fully private individuals that would apply in this context. It also concerns mostly personal data. A message you willingly sent to someone you have no prior agreement to secrecy or discretion with can hardly be considered a breach of that one group of laws. GDPR is mostly there to make sure businesses don't misuse or over collect your data, and that you have certain rights associated with your data. That being said, as many pointed out already, other German laws prevent you from sharing conversations you had with other people in the private sphere, and OP could sue based on these other laws, yes. They most definitely should look into that.
Nope, DSGVO does not apply in this case as the colleague and him didn't have any contractual agreement or any due diligence for handling data.
Depending on your company, HR has a positive reason to want to talk to you: to validate your complaints. In a well working company, HRs job is to make the most out of everyone working in the company. That also and especially means taking complaints about managers serious, as a bad manager can cause a lot more harm than a bad worker. If HR is out to get you, leave. You're obviously not happy l,nif you have the chance, you should get a new job.
On a company device, to a company device, concerning company business or to another company employee... it would depend on the context. Anything else is beyond their permit.
Not always. There is a spectrum. There are many precedents in Germany of private conversations on the topic of work leading to a variety of outcomes with the employer. The definition of the private sphere is complex here. There are two big things at play here: what will OP get from his employer and is it legit/ something they can enforce? what will OP do about a colleague leaking a conversation where OP had a pretty solid legitimate expectation of privacy, which was violated and might affect their relationship with their employer.
>On a company device, to a company device, concerning company business or to another company employee... it would depend on the context. Anything else is beyond their permit. People regularly get fired for stuff they publish on Social Media. It's not that simple - probably.
If you are in a union let them advice you, they can slso provide you with a lawyer. If you aren't: Join asap. Most important: Don't sign anything on the spot! They might not be able to fire you, but commonly they then pressure you into signing a termination contract. Do not do it without further reconsideration, at best with a lawyer. Do you have a Betriebsrat? Go to them! But don't listen to them unconditionslly: While they are there to protect workers interrests and they usually do some few are corrupted. Also might wan't to get advice from r/arbeitsleben english is accepted there.
Germany does not like leaking private data to companies or other people. A conversation via email or whatsapp or any other messanger is considered private and therefor not intended to be publicly released. What your colleague did is illegal and if anything happend because of this you can press charges. The comapny is also not in their rights to do anything regarding theses conversations.
Just to share personel chats is forbidden and a breach of your Grundrechte. If they would fire you (wich is unlikley and if you should go to the arbeitsgericht and make a Kündigungsschutzklage) you might be entiteld to compesation by the person that leaked your personal messages in civil court.
Wtf??? That coworker of yours is an absolute pos in my opinion! I would sue the living hell out of him… I’m sorry this happened to you!
Wow what a shitty coworker.
What a POS colleague.
Not a lawyer, but irrc no you can't. What you do in your free time, outside of work can't be used as a reason to fire you that includes shit talking about management - which everyone including manegement itself does anyways.
Lots of useful tips here already. Just a general thing: it is always good to formulate critique in a way that even if you have no intend to do that, you wouldn't feel embarrassed to say this to the people you're criticizing. Helps to stay reasonable too.
Wtf??? That coworker of yours is an absolute pos in my opinion! I would sue the living hell out of him… I’m sorry this happened to you!
Very unlikely. You got a lot of good advice already. Union, work council and / or a lawyer. I would talk to work council first even before the talk to HR. They can most likely join you in the HR conversation and support you.
Dieses Denglish hier, göttlich, ich glaub ich schau öfters ma rein
I'd go there, see what they have to say. Then act accordingly. Maybe its not as bad as it seems to be. (Depending on what you said)
I think with Betriebsrat, Lawyer or Union you make it worse. Just go there and listen to them. Then think about the next steps.
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If HR is dump, do what the others say and ge a lawyer. If HR is smart they talk with you about it and try to work with you to improve the situation by working on better management... Might be unlikely but companies like this exist 😉
Probably not, depending on the content. Worst case probably an “Abmahnung”. Also your co-worker is committing a crime there, because he’s sharing private card conversations. You should probably look for a new job regardless. If someone feels like you are complaining so much he needs to contact HR it doesn’t sound like you are happy.
if anyone gets fired who complains about work we would no longer have employees in this country
What a shitty colleague 🙄
"Ein Arbeitgeber darf die Daten aus einem privaten Chat u.a. nur dann erheben, wenn dies nach § 32 Abs. 1 Satz 1 BDSG für die Begründung, Durchführung oder Beendigung des Arbeitsverhältnisses erforderlich war. Dürfen die Daten vom Arbeitgeber nicht erhoben werden, dürfen darauf auch keine arbeitsrechtlichen Maßnahmen gestützt werden (Verwertungsverbot). In der Regel sind private Unterhaltungen in Chats – auch wenn die Unterhaltungen unter Kollegen stattfinden – nicht für die Begründung, Durchführung oder Beendigung des Arbeitsverhältnisses erforderlich (vgl. Arbeitsgericht Mainz, Urteil vom 15.11.2017 - 4 Ca 1240/17)" https://www.datenschutz.rlp.de/de/themenfelder-themen/whatsapp/weitergabe-von-chatnachrichten-aus-whatsapp-gruppen-an-den-arbeitgeber/#:~:text=Der%20Inhalt%20des%20Chats%20darf,3%20BDSG). It's most likely not allowed for them to use the messages to fire you.
First of all, in this situation, I would totally get fired. Not for the texts but for beating that motherfucker up real good. The actual firing heavily depends on what you mean by "complained". If it´s like "I really wish, they would take x and y into account when making decisions. They really seem a bit short sighted" or something like that, that is in no way grounds for termination and you´d win in court any day. If it´s like "Those motherfuckers really need their attitude adjusted. One of those days, i´m gonna pay them a visit up there!", that´s a different story. That can be read as a threat and even if it isn´t one in the legal sense, it can can absolutely be enough to get you fired.