Federal Labor Court, 10.04.2014, Case No.: 2 AZR 684/13
In both cases of conduct-related and person-related termination of an employee, a careful and comprehensive weighing of interests must first be carried out. The employer’s interest in the termination is weighed against the employee’s interest in continued employment.
For the employer, the following factors are considered:
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- Nature and extent of operational disadvantages,
- Maintenance of the company’s functionality,
- Risk of recurrence,
- Damage to the employer’s public reputation.
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For the employee, the following factors are considered:
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- Nature, severity, and frequency of the alleged breach of duty,
- Previous behavior of the employee,
- Employee’s insight,
- Length of employment and employee’s age.
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In the case discussed here by the Federal Labor Court, the court had to decide whether the dismissal of an employee of the Federal Employment Agency was lawful, although the employee had dealt drugs in his free time.
Facts of the Case:
Plaintiff was a caseworker at the job center and convicted of drug trafficking.
The plaintiff had been employed by the defendant Federal Employment Agency as a caseworker for „benefits under SGB II“ since 2005. In 2001, he was sentenced to a combined prison term of one year and nine months for intentional illicit drug trafficking and aiding in such, with the sentence being suspended on probation and lifted in 2003.
New allegations of drug trafficking
On 15.08.2011, a meeting was held between the parties during which the plaintiff denied having dealt or used drugs. However, following a broad confession, the plaintiff was convicted on 26.01.2012 for illegal drug trafficking in significant quantities and sentenced to a combined prison term of one year and eight months, also suspended on probation. The plaintiff informed the defendant of this on the same day. After the plaintiff had again engaged in drug dealing, the defendant terminated the employment relationship both without notice and with notice.
Termination without notice and ordinary termination by the defendant
By letter dated 06.02.2012, the defendant, after consulting the works council, terminated the employment relationship of the parties without notice. In a subsequent letter dated 28.02.2012, after further consultation with the works council, the defendant also gave notice of termination effective 30.06.2012.
Action against the dismissals
With his timely filed dismissal protection lawsuit, the plaintiff challenged both terminations and sought a declaration that the employment relationship between the parties had not been dissolved by either the extraordinary termination of 06.02.2012 or the ordinary termination of 28.02.2012. He also sought an order requiring the defendant to continue employing him as a caseworker for benefits under SGB II, with remuneration according to pay group TE IV, level 2.
Plaintiff Filed Dismissal Protection Lawsuit, Lower Courts Rejected It
The lower courts initially hearing the case deemed the extraordinary termination invalid, but the ordinary termination as socially justified. The plaintiff pursued his claim in full with his appeal to the Federal Labor Court.
Federal Labor Court’s Judgment on Appeal
The termination of 28.02.2012 was socially justified under § 1 para. 2 KSchG. Although the termination was not due to the plaintiff’s conduct, the defendant was entitled to terminate the employment for reasons related to the plaintiff’s person, as the plaintiff lacked the necessary suitability to perform his duties.
The court found that criminal behaviour outside of working hours could also cast doubt on the reliability and trustworthiness of the employee. In the case of the plaintiff, the authorisation of benefits in accordance with SGB II was a sovereign task that required absolute integrity. Illegal drug dealing was incompatible with this activity.
Weighing of interests: Interests of the defendant prevail
The BAG recognised that the plaintiff had been with the company for almost seven years, but the defendant's interest in terminating the employment relationship prevailed. The plaintiff's behaviour had shaken the trust in the proper performance of public duties.
Source: Federal Labor Court
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