Düsseldorf Regional Labor Court, 08.06.2017, Case No.: 11 Sa 823/16
Pursuant to Section 626(1) of the German Civil Code (BGB), the employment relationship may be terminated by either party (employer or employee) for a compelling reason without notice, provided that facts exist that make it unreasonable for the terminating party to continue the employment relationship until the notice period or until the agreed-upon termination date, taking into account all circumstances of the individual case and weighing the interests of both parties. In determining whether there is a compelling reason, objective criteria must be applied. Therefore, when an unfair dismissal lawsuit is filed, labor courts must determine whether, based on an objective assessment, it was unreasonable to continue the employment at the time the dismissal was issued. Extraordinary dismissal is justified, among other reasons, if there is a personal, behavioral, or operational cause, and the dismissal is not disproportionate. In principle, threats against the employer or persons associated with them, or bullying, may be considered valid grounds. However, each case must be assessed individually.
Facts of the case:
The employee had been repeatedly warned by the employer.
The parties are disputing the validity of an extraordinary dismissal. The plaintiff had been employed by the defendant state since October 3, 1988. Between 2004 and 2013, the plaintiff was repeatedly warned, including for failure to follow official instructions, breach of loyalty obligations, refusal to work, and insulting superiors and colleagues. Since July 2014, the plaintiff had been on sick leave.
In 2012, the plaintiff was convicted by the Düsseldorf District Court for using office photocopiers to make election posters under the false pretense of having permission, despite knowing it was not allowed.
The employee threatens his superior over the phone: “I’ll stab you.”
On December 19, 2014, at 8:50 PM, a disputed phone call took place between the plaintiff and Administrative Manager C. During this call, which was made from a phone booth located about 3.5 km from the plaintiff’s residence, the plaintiff allegedly threatened C. with the words, “I’ll stab you!” The Düsseldorf Public Prosecutor’s Office initiated a criminal investigation against the plaintiff following a complaint filed by C. Police officers visited the plaintiff at his home at 1:05 AM to issue a warning.
The defendant state applied on December 30, 2014, to the relevant integration office for approval of the extraordinary dismissal of the employment relationship, and alternatively for an extraordinary dismissal with a social extension period. The personnel council at the North Rhine-Westphalia State Criminal Police Office was consulted on January 6, 2015, regarding the intended dismissal. Neither the integration office nor the personnel council objected to the dismissal.
Employer terminates without notice and alternatively with notice due to the threat.
The defendant state terminated the employment relationship without notice in a letter dated January 13, 2015, and alternatively with notice effective June 30, 2015, or the next possible date.
The plaintiff filed a lawsuit against this dismissal with the Düsseldorf Labor Court. The plaintiff argued that he was not fit to stand trial and that the extraordinary dismissal was invalid due to the lack of a compelling reason.
A psychiatric expert report indicated that the plaintiff was “increasingly under pressure” due to the fraud allegations concerning the election posters, and his anxiety about losing his job had intensified. The report concluded that it could not be ruled out that, under stressful circumstances, the plaintiff might make decisions that were not based on reasonable judgment. Furthermore, it was noted that the plaintiff’s ability to control his actions might have been significantly impaired, if not entirely absent, at the time of the alleged offense.
The Düsseldorf Labor Court deems the dismissal valid.
The plaintiff claimed that he had never called C. privately and therefore did not threaten him over the phone. The Düsseldorf Labor Court found it plausible that the plaintiff could have made the call on December 19, 2014, given the proximity of the phone booth to his residence. Witnesses C., G., and P. were heard by the court. The labor court had no doubts about the credibility of C., who had been threatened by the plaintiff with the words, “I’ll stab you!” This serious and sustained threat disrupted the workplace order at the North Rhine-Westphalia State Criminal Police Office. The threat not only severely strained the relationship between the plaintiff and C. but also negatively affected the plaintiff’s relationship with other colleagues. Consequently, it was irrelevant that the expert psychiatric report found the plaintiff’s ability to control his actions significantly diminished or even absent. The court held that special circumstances justified the extraordinary dismissal, even in cases of blameless behavior.
A warning was not required because the violation was so severe that tolerating it was impossible.
The plaintiff appealed the Düsseldorf Labor Court’s decision to the Düsseldorf Regional Labor Court, arguing procedural and substantive errors. He claimed that the court had violated procedural rules, such as the principle of immediacy, due to a change in the lay judges between hearings in April 2015 and August 2016.
Judgment of the Düsseldorf Regional Labor Court:
The appeal court confirms the Düsseldorf Labor Court’s ruling.
The court found the lawsuit admissible but unfounded. The labor court had correctly ruled that the extraordinary dismissal of January 13, 2015, had immediately terminated the employment relationship.
Contrary to the plaintiff’s claims, the labor court had not violated the principle of immediacy as required by Section 46(2) of the Labor Court Act (ArbGG) and Section 355(1) of the Civil Procedure Code (ZPO). According to the Düsseldorf Labor Court’s distribution of duties, lay judges Grauert and Günther participated in all hearings where disputed matters were discussed. Their absence at the announcement hearings on April 16, 2015, and August 20, 2015, was irrelevant, as only the written decision was read.
The court also found that the plaintiff had been competent to stand trial under the applicable legal provisions.
The threat justified both the extraordinary and ordinary dismissals.
The appeals court also ruled that the serious and sustained threat against the employer, its representatives, or colleagues constituted a significant breach of the employee’s duty of loyalty under Section 241(2) BGB and was sufficient grounds for extraordinary dismissal under Section 626 BGB.
The labor court had thoroughly examined the facts and found that the plaintiff had threatened C. with the words, “I’ll stab you!” on December 19, 2014. The Düsseldorf Regional Labor Court saw no procedural errors in the evidence collection, nor did the plaintiff raise any in his appeal.
The court did not doubt the credibility of witness C., whose clear memory of the call was explained by the fact that it was a unique and impactful conversation for him. C. had also documented the main points of the call and filed a police report shortly afterward. C.’s testimony was deemed trustworthy because he had no reason to falsely incriminate the plaintiff.
The court also found it plausible that the plaintiff could have made the phone call from the nearby phone booth and then returned home, as confirmed by witnesses who testified to his later presence there.
The plaintiff had made contradictory statements during the trial.
The appeals court agreed with the labor court that the plaintiff’s statements during the first-instance proceedings were not credible. The plaintiff could not convincingly explain how he had been able to recall events almost to the minute in public hearings, without using written notes, and his later statements about that evening were inconsistent.
The testimony of witnesses P. and G. was also found unreliable, as their accounts were inconsistent with the plaintiff’s and with each other.
The Düsseldorf Regional Labor Court concurred with the labor court that even if the plaintiff’s actions were blameless, the extraordinary dismissal was justified. A warning was unnecessary, and the balance of interests could not favor the plaintiff.
The defendant state had complied with the two-week period required under Section 626(2) BGB and properly involved the personnel council as per Section 74(2) of the North Rhine-Westphalia Staff Representation Act (LPVG NRW).
Therefore, the extraordinary dismissal under Section 626 BGB was valid, and the appeal was dismissed.
Source: Düsseldorf Regional Labor Court
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