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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.
In such cases, courts often examine whether a dismissal for private drug use or drug dealing is legal. Dealing with narcotics outside of work can also have an impact on the employment relationship if it jeopardises the employer's trust.
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.
Even if no drugs are consumed at the workplace, termination without notice due to drugs at the workplace or in connection with drug consumption may be possible in the event of serious misconduct. In such cases, the Federal Labour Court places high demands on the employee's trustworthiness.
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.
The notice periods for employees generally remain in place in such cases, unless termination without notice is legally permissible. The employer must always check whether ordinary dismissal in compliance with the notice periods would be sufficient or whether immediate termination of the employment relationship is necessary.
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.
The plaintiff claimed that a dismissal for drug use in his free time was inadmissible as there was no direct connection to the workplace. This argument is regularly examined in labour law proceedings, especially when it comes to private life.
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.
The ruling clarifies what constitutes grounds for dismissal under labour law. In addition to workplace-related breaches of duty, this also includes criminal offences committed outside of work if they call into question the employee's professional suitability. A case of drug dealing or drug use can therefore justify both summary and ordinary dismissal.
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. The same principles naturally also apply to Labour law in Cologne.
In addition to termination of employment, in comparable cases there is also the threat of a prison sentence for drug trafficking, which additionally impairs confidence in the employee's reliability. Employers are obliged to consider the risk to the company and public reputation in the event of such convictions.
Source: Federal Labor Court
Important Note: The content of this article has been prepared to the best of our knowledge and belief. However, due to the complexity and constant evolution of the subject matter, we must exclude liability and warranty. Important Notice: The content of this article has been created to the best of our knowledge and understanding. However, due to the complexity and constant changes in the subject matter, we must exclude any liability and warranty.
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