Regional Labor Court Berlin-Brandenburg, 05.11.2010, 6 SA 1442/10
According to Section 626 of the German Civil Code (BGB), an employment relationship can be terminated by either party without notice for an important reason if circumstances are such that, taking all the circumstances of the individual case into account and weighing the interests of both parties, it cannot be reasonably expected for the terminating party to continue the employment relationship until the end of the notice period or until the agreed termination of the employment relationship. The courts have had to decide on countless “important reasons,” with breaches of duties or criminal acts frequently subject to judicial review. Particularly the “Emmely” case has attracted considerable attention in this area.
In the decision mentioned above, the Regional Labor Court Berlin-Brandenburg had to rule on whether the declaration leading to a termination agreement by an employee was contestable if the employer had given the employee the choice of either facing an extraordinary dismissal or signing the termination agreement due to a criminal act.
Facts of the Case:
The employee had stolen tissue packs from the employer.
The plaintiff (employee) was employed by the defendant (employer) and stole four packs of tissues. The defendant then presented the plaintiff with the choice of either being terminated without notice or signing a termination agreement.
The employee eventually signed the termination agreement but later sought to contest it.
The plaintiff chose to sign the termination agreement. She later regretted this decision and contested her declaration of entering into the termination agreement due to unlawful coercion (threat of dismissal) and sued for continued employment. The Labor Court Potsdam rejected the claim, and the defendant appealed.
Judgment of the Regional Labor Court Berlin-Brandenburg:
According to the court, the contestation was invalid.
The LAG upheld the view of the Labor Court Potsdam. The termination agreement was not invalidated by the plaintiff’s retroactive contestation under Section 142 (1) BGB, as there was no reason for contestation. Although the defendant’s statement could be seen as a threat, it was not considered unlawful.
The Threat of Dismissal Was Not Unlawful
Under Section 123 (1) BGB, a threat of extraordinary dismissal is only unlawful if a reasonable employer could not seriously consider such a dismissal. Only if, taking all the circumstances of the individual case into account, the employer must assume that the threatened dismissal would, if issued, highly likely not withstand a court review, may the employer not present the extraordinary dismissal as a threat to induce the employee to enter into a termination agreement.
Source: Regional Labor Court Berlin-Brandenburg
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