Balancing Freedom Of Expression With Loyalty To Employer

Author:Mr Roger James
Profession:Ogletree, Deakins, Nash, Smoak & Stewart
 
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Co-authored by Dora Gaži Kovačević of Wolf Theiss

The European Court of Human Rights (ECHR) has ruled in favor of a Croatian employee who was dismissed after criticizing her employer in a press article. In a fact-specific ruling, the ECHR held that the dismissal infringed the employee's freedom of expression guaranteed under the European Convention for the Protection of Human Rights.

Background

Mirela Marunić was the director of KD Kostrena, a municipal utility company whose sole shareholder was the Municipality of Kostrena. In an article published in local papers in 2007, the Mayor of the Kostrena Municipality and chairman of the company's general assembly criticized Marunić's performance. In an article in response to the mayor's criticism, published in the same papers eight days later, Marunić replied to the allegations and raised irregularities in the way business decisions were being made. She also urged the State Audit Office, State Attorney's Office, and other relevant authorities to inspect her work. Shortly after her article was published, Marunić was summarily dismissed for making statements that were damaging to the company's business reputation. The company argued that a continuation of the employment relationship was no longer possible.

Marunić brought a successful claim for wrongful dismissal, arguing that her right to speak publicly and right to freedom of thought were guaranteed under the Croatian Constitution. As such, her actions did not constitute a statutory reason for summary dismissal. However, on appeal, the Supreme Court of Croatia reversed the judgment and dismissed Marunić's claim. The Supreme Court of Croatia accepted the company's argument that the circumstances meant that her continued employment would have been impossible.

A separate appeal to the Constitutional Court of Croatia also found in favor of the company. The Constitutional Court of Croatia held that the right of a citizen to publicly express his or her personal opinions came second to the requirement to follow employment-related rights and duties.

Despite these setbacks, Marunić, in August 2012, filed an application with the ECHR complaining that her dismissal on account of her media statements had been in breach of her freedom of expression and contrary to Article 10 of the European Convention for the Protection of Human Rights.

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