Summary dismissal of an employee, who threw a computer mouse and made an audio recording from a meeting with his employer without the employer's knowledge, was unjustified

By Pia Skovgaard Hansen, Søren Narv Pedersen

08-2019

According to the Supreme Court, the summary dismissal was unjustified because the throwing of the computer mouse could not be considered as a sufficient serious breach of the employment to substantiate a summary dismissal. Furthermore, the hidden audio recording was legal and reasoned.

The circumstances of the case:

A was employed as Costumer Consultant in company C. During a meeting on 11 October 2016 between the CEO, B and two other Costumer Consultants regarding salary and commission payment, A got so upset that he threw a computer mouse through the room. Furthermore, A recorded the meeting on his mobile phone without the other participants' knowledge. 

On the basis of the presented evidence, it could not be determined whether A threw the mouse in the direction of B and if A in fact intended to hit B with the mouse.

After A had thrown the mouse, it appears from the audio recording that A apologised for his behavior, after which the deliberations regarding salary and commission continued.

After the meeting, A left the office two hours before closing hours. In this connection, A informed a colleague that he would take some time off in lieu of overtime.

Because of A's behavior and because he left the office early, A was summarily dismissed on 24 October 2016. Hereafter, A filed a claim against B for unjustified summary dismissal. During the submission of the evidence, B became aware of the hidden audio recording and decided to dismiss A retrospectively with effect from 11 October 2016. The summary dismissal was substantiated by A's violation of A's obligation of loyalty due to the hidden audio recording.

The Supreme Court was then to decide whether the summary dismissal of A was legitimate based on the throwing of the computer mouse and based on the hidden audio recording, respectively.

Supreme Court's remarks:

The throwing of the computer mouse:

During the meeting regarding salary and commission payment, both A and B were upset which led to A throwing the computer mouse through the room. However, since the Supreme Court could not determine whether A threw the computer mouse at B and as A and B continued the deliberations after the throwing, the Supreme Court stated that the throwing of the computer mouse under these circumstances could not be considered a sufficient violation of the employment relationship to substantiate a summary dismissal. Furthermore, the Supreme Court established that the throwing of the computer mouse could not either substantiate a dismissal of A without A being provided with a prior warning thereof.

The audio recording:

As regards the hidden audio recording, the Supreme Court found it important that in accordance with section 263(2)(2) of the Danish Criminal Act (in Danish: straffeloven), conversely it is not illegal to record a meeting if you attend the meeting yourself. Further, the Supreme Court found it important to clarify whether the consideration to the employee exceeds the consideration to the employer and other participants in the meeting.

According to the circumstances of the case, A recorded the conversation to ensure proof of the content of the conversation, which e.g. was regarding salary and commission payment. Furthermore, it appears from the case that A did not intend to misuse the information or otherwise harm the reputation of the company. On this basis, the Supreme Court established that the audio recording of the meeting without the other participants' knowledge thereof was legitimate, and that the consideration to the employee exceeded the consideration to the employer and the other participants.

Therefore, the Supreme Court decided, that there was no grounds for dismissing or summarily dismissing A.

On this basis, A was awarded damages corresponding to the salary during the notice period and compensation corresponding to one month's salary due to unfair dismissal.

Bird & Bird comments:

On the basis of the above, Bird & Bird remarks that if an employer wishes to summarily dismiss an employee based on an actual and obvious action, it is important that the employer immediately informs the employee that the action in question is unacceptable. Therefore, the employer must first of all be careful not to accept the action by for example continuing the dialogue, since this may cause that the action no longer can substantiate a summary dismissal.

Bird & Bird further remarks that it is not considered a violation of the employee's loyalty obligation to secretly record a meeting, if the employee himself participates in the meeting. It is, however, a requirement that the purpose of the recording – as in this case- is to ensure documentation of an oral agreement between the employer and the employee. If the purpose of the recording, on the other hand, is to leak confidential information or to carry out other actions for the purpose of damaging the company, the assessment thereof would undoubtedly be different.