Freedom of Opinion on Workdays

In Zhu Hong‘s (lost) case against Deutsche Welle, there are two factors that may matter most. One would be the difference between conviction or Weltanschauung on the one hand, and differences in opinion on the other. As I understand it, communism, atheism etc. would be Weltanschauungen. Someone employed by a church or a church institution may get fired when he or she declares to be atheist, and that may be legal, as churches are Tendenzbetriebe. Media and publishers, too, are Tendenzbetriebe. However, mere differences of opinion won’t lead to getting sacked that easily, at least not in theory, and employers who give it a try anyway may have a hard time in the labor courts.

The other factor to be reckoned with in Ms Zhu’s case would be her weak position as a quasi-employee (arbeitnehmeränlich beschäftigt). Neither of the four editors at the Chinese department [addition: who lost their jobs or contracts in 2010/11] had a permanent contract. At least one of them, however, was fully employed, but as a temporary employee, not as a permanent employee.

The member of the DW employee committee who basically confirmed the content of the [addition: open letter by] former Chinese-department staff published by Neue Rheinische Zeitung in 2011, was – my interpretation – no temporary employee, let alone only a quasi-employee. He was in a position to differ. Zhu Hong wasn’t.

I was made aware of the two (possible) factors, mentioned in the first paragraph here,  in the commenter thread on my German-language blog, over the weekend. This discussion changed my perception in some ways – the commenter is apparently a lawyer, and was quite prepared to share his views – he noted, however, that it was too early to arrive at final conclusions, as the federal labor court hasn’t published its written opinion yet. The federal labor court argued that Ms Zhu had not been fired for a Weltanschauung. She was no communist. However, if Deutsche Welle wanted more  journalistic distance between itself and the government in Beijing (and the court didn’t try to judge if this was so), even that would be sufficient legal justification to end cooperation with Ms Zhu.

The commenter himself didn’t see the major issue in the concept of Tendenzbetriebe. A labor court case, he wrote, was similar to civil suits in that only the material and arguments brought forward in the proceedings right in court were considered by the judges. That made these proceedings different from administrative courts that may frequently carry out investigations on their own, to get a comprehensive picture.

For an employee with no permanent contract, it won’t be easy to find a point against the (former) employer that would lead a court’s objection to the dismissal of a quasi-employee like Ms Zhu. This is the status of many journalists in Germany. It is a status that makes it easier for papers or other media to fire staff who work on non-permanent contracts, once the deadline is reached, be it for differences or disputes, be it for economic reasons (downsizing). And this, in turn, may lead – an obvious conclusion, in my view -, to a large number of editorial or reporting staff who are afraid of conflicts, with – obvious, I think – drawbacks for freedom of opinion.

In an article not related to the Chinese department in particular, Michael Hirschler of the labor union Deutscher Journalistenverband wrote (undated, but apparently posted early in 2011) that when downsizing is the reason for dismissals, Deutsche Welle has frequently succeeded in getting rid of quasi-employees. The same was true for many other German broadcasters. Hirschler’s advice for freelancers, including quasi-employees, was to join one of the unions – Deutscher Journalistenverband or verdi – to get entitled to the benefits of legal counsel.

Certainly, politicans needed to do their share, too, to keep Deutsche Welle going, wrote Hirschler. In the world of international broadcasting, Deutsche Welle wouldn’t be competitive without sufficient funding. Both freelancers at Deutsche Welle, and permanent employees, should address politicians to this end.

But the next problem may be right there. German federal parliament itself, a place for many lofty speeches condemning questionable avoidance strategies of permanent employment contracts, employed de-facto permanent employees as seemingly self-employed (scheinselbständig), Süddeutsche Zeitung reported earlier this month.

Freedom of opinion and social justice are great topics for Sunday speeches. But they may be very different stories from Monday through Saturday.

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