APD/GBA (Belgium) - 145/2023
| APD/GBA - DOS-2020-00200 | |
|---|---|
 | |
| Authority: | APD/GBA (Belgium) |
| Jurisdiction: | Belgium |
| Relevant Law: | Article 4(1) GDPR Article 6(1)(f) GDPR |
| Type: | Complaint |
| Outcome: | Upheld |
| Started: | 17.01.2020 |
| Decided: | 26.10.2023 |
| Published: | 27.10.2023 |
| Fine: | n/a |
| Parties: | n/a |
| National Case Number/Name: | DOS-2020-00200 |
| European Case Law Identifier: | n/a |
| Appeal: | Unknown |
| Original Language(s): | Dutch |
| Original Source: | GBA (in NL) |
| Initial Contributor: | Matthias Vandamme |
The APD/GBA reprimands a college after unlawfully communicating by email to (former) students and staff about the dismissal of one of its teachers following a physical incident.
English Summary
Facts
A college dismissed one of its teachers after a physical incident with a student. A dispute allegedly arose after the student tried to secretly check his/her marks on the lecturer's computer screen. In the aftermath of this dispute, the lecturer allegedly became physically aggressive towards the student. However, the lecturer believes that this was a misunderstanding. He allegedly made a waving gesture to the student and accidentally hit him/her.
Following an internal investigation, the lecturer was dismissed for urgent cause. The college's management decided to inform its staff and the lecturer's students. As the mailboxes of former students are not closed until the following academic year, a number of former students also received the notice. In total, at least 195 (former) students received the notice.
The notice of dismissal was worded as follows
"This follows physical aggression towards one of the students [...] a thorough investigation has shown that this incident makes any further functioning of [complainant's name] as an employee of [respondent] impossible". (non-official translation)
This ultimately led the lecturer to lodge a complaint with the APD/GBA.
Holding
The APD/GBA ruled that the communication was unlawful and reprimanded the college. In its decision, the APD/GBA distinguished between communications to current professors and students, on the one hand, and communications to former students, on the other. In both cases, it applied the three-step test required to invoke legitimate interest:
1. Purpose test. First, the APD/GBA confirmed that the mere fact that the lecturer has been dismissed for cause is sufficient to establish that there is an immediate and legitimate need to communicate this to students and colleagues.
2. Necessity test. For the former students, the AP/GBA argued that the communication was not necessary and found a breach. In doing so, the GBA also confirmed the need to keep student accounts and associated mailboxes up to date. This is particularly so as these are used for communication on such matters.
In relation to current students and colleagues, the APD/GBA found that there was no need to communicate the reason for dismissal, which was 'physical aggression'. It considered that there was no current need for the college to do so. The APD/GBA explicitly states that fear of backbiting or mistrust is not sufficient. However, the GBA does not rule out that there may be situations where it is necessary to state the reason for dismissal.
3. Balancing test. Finally, the APD/GBA argues that the balancing test has not been respected. Indeed, the college claimed in its communication that the decision to dismiss had been taken only after a "thorough investigation". However, it subsequently emerged that this was not the case. Furthermore, the college failed to mention in its communication that the lecturer could still appeal to the internal appeals body.
Consequently, a breach of Article 6(1)(f) GDPR was found.
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English Machine Translation of the Decision
The decision below is a machine translation of the Dutch original. Please refer to the Dutch original for more details.
