Düsseldorf Regional Labour Court, 12.04.2018, Ref.: 11 Sa319/17
In accordance with Section 626 (1) BGB, the employment relationship can be terminated by either party to the contract for good cause without observing a notice period if there are facts on the basis of which the terminating party cannot reasonably be expected to continue the employment relationship until the expiry of the notice period or until the agreed termination of the employment relationship, taking into account all the circumstances of the individual case and weighing up the interests of both parties to the contract.
This standard forms the general clause for terminating the employment relationship for "good cause". This requirement is examined in two stages. Firstly, it is examined whether there is good cause "per se". In other words, whether, if the facts of the case are true, the behaviour is suitable to constitute good cause at all. In a second step, it is then assessed whether, taking into account the specific circumstances and weighing up the mutual interests, termination is justified.
However, the specific circumstances for such a termination must also be established as a basis. Dismissal due to the abstract risk of a breach of duty is invalid. If there is a suspicion that a criminal offence has been committed, this suspicion must also be based on and supported by concrete facts. Otherwise, the presumption of innocence precludes dismissal on suspicion.
In the following case, the Regional Labour Court stated that, in general, a breach of the duty of consideration under Section 241 BGB could also constitute good cause. Even outside of working hours, the employee must take the employer's legitimate interests into consideration. A violation can therefore also occur through off-duty behaviour, but it is necessary that the employer's legitimate interests are impaired by the employee's - unlawful - off-duty behaviour. A negative impact on the company or a connection to the employment relationship is required, for example if the offence is committed using company resources or company facilities.
Initiation of Legal Proceedings
This case concerned the summary dismissal of a chemical laboratory technician who had worked for the defendant since 1991. The plaintiff, who was severely disabled with a degree of 50%, was dismissed without notice after chemicals were found in his home that could be used to manufacture explosives and narcotics. The plaintiff filed an action for unfair dismissal, demanded the issue of an interim reference and continued employment during the legal dispute.
Background and reason for cancellation
The plaintiff worked in the Quality Control department and carried out various safety-related tasks. In 2012, his licence to order chemicals was revoked due to the improper handling of liquid nitrogen. On 2 August 2016, the plaintiff was arrested by the police and a large quantity of chemical substances that could be used for illegal activities was discovered in his home. This prompted the defendant to obtain an extraordinary notice of termination.
The defendant justified the dismissal with the suspicion that the plaintiff was illegally dealing in chemicals and drugs. It argued that the plaintiff had access to hazardous substances through his work and therefore posed a risk to the company. The plaintiff, on the other hand, denied the allegations and stated that his private experiments had no connection with his work at the defendant.
Decision of the labour court
The labour court largely dismissed the claim and found that the dismissal was effective for personal reasons. The warnings and incidents from the past as well as the possession of chemicals cast doubt on the plaintiff's reliability. The court ruled that the plaintiff was no longer suitable for safety-related tasks due to the seriousness of the facts. The employer could not reasonably be expected to re-employ him. The plaintiff was only awarded the right to a qualified final certificate.
Appeal decision of the Regional Labour Court
The Düsseldorf Regional Labour Court partially upheld the plaintiff's appeal. It ruled that the termination without notice of 1 September 2016 was invalid as there was no good cause within the meaning of Section 626 (1) BGB. Although a criminal offence committed outside of work could justify a dismissal, the defendant had not provided sufficient evidence of a direct connection between the criminal offences and the plaintiff's work activities. The defendant was unable to prove that the plaintiff had stolen chemicals from the company or carried out unauthorised experiments in the laboratory.
Result and outlook
The Regional Labour Court ruled that the termination without notice could not be upheld. However, as ordinary notice of termination was given with effect from 31 December 2017, there was no entitlement to continued employment during the legal dispute. The claim to an interim reference was also denied, as the employment relationship no longer existed at the time of the hearing. Overall, it was suggested to the defendant that milder measures, such as reorganising the workplace or restricting access to chemicals, would have been possible in order to continue to employ the plaintiff.
Source: Düsseldorf Regional Labor Court
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