The ombudsman found that it was "strongly criticisable" that Campus Bornholm had dismissed a teacher for having criticised the employer. It was also criticisable that the employer had sent a notification to the staff.

The matter began with an e-mail sent by the teacher to members of the Finance Committee of the Danish Parliament. The e-mail was sent in connection with an extraordinary grant to the campus building, on which the Finance Committee had to decide. In the e-mail, the teacher expressed his concern because the financing of the building was not in place criticising the school's management for the financial transactions. The teacher stated:

"As a teacher at STX-Bornholm and living on the island, I don't know what I was hoping for. But as a normal thinking person and Danish tax payer, I hope that if the Finance Committee chooses to save a sinking ship, the Committee will make the financing conditional on the executive officer's as well as the board's resignation."

On this basis, Campus Bornholm chose to dismiss the teacher due to disloyal conduct referring for instance to the statement being "particularly gross and that the disloyal conduct was not consistent with a continued cooperation with the school's management."

The letter to the staff: "Loyalty versus freedom of speech"

The dismissal got a lot of press coverage. In this connection, the teacher claimed that the dismissal was contrary to the rules on government employees' freedom of speech. This made the school send a letter to the staff.  The letter contained a section called "Loyalty versus freedom of speech", in which the school stated that the staff was to direct criticism to the immediate superior. In an interview, the school's deputy chairman elaborated:

"It is important to be open about your criticism of the management. But is it essential that you first direct your criticism to the management. Having done this, I believe that it is okay to talk to the press."

When referring to the rules on government employees' freedom of speech, the Ombudsman found that the teacher's statements to the Finance Committee "were very much within the limits of what a public employer must accept from the employees." The Ombudsman also found that the time of the statement - the evening before the matter was to be discussed by the Finance Committee - could not indicate that the statements should be considered illegal.

Finally, the Ombudsman stated that the letter did not give a true and fair picture of the staff's right to speak - also critically - about matters at the school, including any disagreements with the management concerning the financial transactions.

The Ombudsman: A public employer may wish or request, but not dictate

The Ombudsman also considered it an aggravating circumstance that the school's deputy chairman had told the press that it was important that any criticism of the management should first be directed internally. In this connection, the Ombudsman stated that a public authority is entitled to express a wish or request that the employees first direct any criticism internally. But there should be no doubt - which was the case with the deputy chairman's statements - that the employees are entitled to publicly criticise a public employer without first applying the internal systems at the workplace.

In overall terms, the Ombudsman found that the circumstances were "strongly criticisable" recommending that Campus Bornholm reopens the dismissal case and initiates any necessary measures to ensure that the staff has no doubt as regards freedom of speech, including the right to criticise the school, the management and its financial transactions and to express this criticism in public without first having directed the criticism to the management.

Re-employment

The day after Campus Bornholm's receipt of the Ombudsman's statement, the teacher was re-employed in the same position as before the dismissal.

contacts

Erik Wendelboe Christiansen

Partner

Marianne Lage

Partner

Rikke Søgaard Berth

Partner

Payam Samarghandi

Assistant Attorney