If there is a general custom for a professional group or industry to mention certain achievements or characteristics of the employee in the reference, their omission is usually a (hidden) indication to the reference reader that the employee is rated below average or at best average in this respect (eloquent silence ).
The employee is then entitled to receive a supplemented certificate. This is required by the principles of clarity of testimony (§ 109 Para. 2 GewO) and truth of testimony. For this reason, the Ninth Senate referred the matter in case 9 AZR 632/07 back to the lower court in its judgment of August 12, 2008. The State Labor Court must clarify whether the assessment of resilience in stressful situations is part of the usual content of the certificates of daily newspaper journalists.
As a matter of fact, the determination of the use of evidence is reserved for the factual authority.