Aktualisiert am:
Mainz Regional Labor Court, August 18, 2011, Case No.: 2 Sa 232/11
According to the jurisprudence of the Federal Labor Court, a warning from the employer to the employee is required prior to termination based on conduct-related reasons.
This applies both to terminations with notice and to immediate dismissals.
The purpose of such warnings is to give the employee the opportunity to recognize and change their behavior.
The employee should henceforth comply with their employment contract and understand that legal consequences may follow if they commit another breach of duty.
A warning may be particularly necessary in the following cases:
- Misconduct due to alcohol
- Failure to report sick leave or reporting it late
- Unauthorized leave or absence without excuse
- General underperformance by the employee
A warning before immediate dismissal is usually not required in the following cases:
- Theft or fraud by the employee
- Physical assault
- Sexual harassment
In the case mentioned above, the employee successfully challenged the immediate dismissal due to the lack of a prior warning. The immediate dismissal was issued because the employee had repeatedly insulted the employer’s store manager.
Facts of the legal case:
Employee shouts at and insults his superior
The plaintiff, born in 1975 and unmarried, had been employed as a retail salesman by the defendant since 1992.
On Friday, August 27, 2010, the plaintiff went to a doctor around 10:30 a.m. and returned to work around 11:50 a.m. He sought out the store manager, who was busy with a goods delivery at the time.
He reported that he was on sick leave and had a new doctor’s appointment scheduled for Thursday. He left the sick note in the goods receiving office.
Shortly after, the store manager entered the office, found the sick note, and paged the plaintiff over the loudspeaker. The plaintiff, still in the store, called from an internal phone near the break room.
During the phone conversation, the store manager inquired about the sick leave and how it would proceed, though the exact details of the conversation are disputed.
At the end of the conversation, the plaintiff shouted at the store manager: “If you’re in a bad mood, don’t take it out on me.”
He then hung up and subsequently said in the presence of female employees of the defendant and a service worker from company T. a sentence that again included the term “jerk.”
The plaintiff then left the store.
The superior contacts the works council regarding the intended dismissal
Three days later, the store manager handed the works council the consultation form concerning the plaintiff’s extraordinary dismissal, including the plaintiff’s social data, the type and date of the dismissal, and an attachment with a written description of the facts.
The form was signed by the works council chairwoman, Mrs. W., on August 31, 2010, stating that the works council agreed to the planned dismissal.
In a letter dated September 1, 2010, which the plaintiff received on September 6, 2010, the defendant terminated the plaintiff’s employment extraordinarily.
The plaintiff argued that there was no just cause for dismissal despite his statements. He had repeatedly shown the store manager the sick note in the goods receiving area but was completely ignored, after which he informed him that he would leave the sick note in the office.
In the subsequent phone call, he felt confronted with a threat of dismissal due to a remark by the store manager, telling him to consult with the works council, hinting that something was coming.
Employee excuses his insult as a reaction to the dismissal threat from his superior
This made him so upset and angry that he made the statement. After hanging up, he was still very agitated and muttered to himself that “this jerk wants to fire me over the sick note.”
The plaintiff argued that this was a momentary lapse, caused by provocation and the threat of dismissal.
The plaintiff denied having knowledge of the proper consultation with the works council.
The defendant, on the other hand, argued that the store manager had not ignored the plaintiff in the goods receiving area but simply did not have time to discuss his sick leave.
In the subsequent phone call, the store manager had asked in a calm and objective manner how the illness would proceed. He had offered the plaintiff advice from the works council on the correct procedure for reporting sick leave.
The plaintiff had barely allowed the store manager to speak and had shouted the already mentioned words at him. After hanging up the phone, the plaintiff threw two pizzas he had taken from the store onto the floor and shouted: “The jerk, he’s lost it” and “Then they should just fire me, those bastards.”
The initial labor court did not find just cause for immediate dismissal
The labor court upheld the plaintiff’s claim, arguing that there was no just cause for immediate dismissal.
While the plaintiff’s behavior constituted a serious breach of duty, the immediate dismissal was not justified under the principle of proportionality due to the specific circumstances.
Even in conduct-related dismissals, the so-called prognosis principle applies. Dismissal for breach of contract usually requires a prior warning.
The defendant appealed the decision to the Mainz Regional Labor Court.
Decision of the Mainz Regional Labor Court:
The Regional Labor Court also found no sufficient grounds for dismissal
The Regional Labor Court agreed with the plaintiff and the labor court.
The labor court based the invalidity of the dismissal on two key considerations: first, the necessity of a prior unsuccessful warning, and second, even if a warning was not required, a balance of interests did not show that the defendant’s interest in immediate termination outweighed the plaintiff’s interests.
According to recent Federal Labor Court case law, a warning can, in individual cases, suffice as a lesser means to restore the necessary trust in the employee’s honesty for the continuation of the contract.
This must be assessed based on the specific circumstances of the individual case.
In this case, the labor court correctly pointed out the exceptional situation.
A warning would have been the appropriate measure here
The plaintiff could and should rightly have viewed the store manager’s remark that he should seek advice from the works council on how to handle a sick leave as criticism of his behavior.
This was even more relevant because the court found no fault in the plaintiff’s actions.
After undergoing a medical examination, the plaintiff immediately returned to the workplace, reported his sick leave, and submitted the sick note.
The obligation to discuss the illness with the store manager, as mentioned by the store manager during the hearing, was not comprehensible.
It also could not be derived from any notice that was supposed to have been agreed upon with the works council.
An employee’s obligations in the event of illness are conclusively regulated in the Continuation of Payment Act.
The labor court’s examination of whether an ordinary dismissal might have been possible instead was also legally sound.
The ordinary dismissal was invalid under § 15 para. 3 sentence 2 of the Dismissal Protection Act.
Moreover, the defendant had not alternatively claimed an ordinary dismissal.
Source: Mainz Regional Labor Court
