Hessian Regional Labour Court, 08.03.2010, Ref.: 16 Sa 1280/09
Literally, the law in Section 626 (1) of the German Civil Code (BGB) provides for termination without notice for good cause 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 circumstances of the individual case and weighing the interests of both parties to the contract.
The principle of proportionality must always be observed. Extraordinary dismissal is only considered (ultima ratio) if milder means such as a warning, transfer, redeployment, extraordinary dismissal with notice of change or ordinary dismissal are ruled out.
Facts
The plaintiff was employed as a nurse by the defendant and was obliged to work on Sundays and public holidays as well as early and late shifts as part of her employment contract. In addition, there was a contractual obligation to work night shifts if required. Since 1999, the plaintiff has worked exclusively on the night shift. At the beginning of November 2008, however, the defendant informed her that she would be working day shifts in future, which the plaintiff refused. The reason for the refusal was the care of her child during the daytime. As a result, in December 2008, the plaintiff received a change of notice, which set her working hours at 40 hours per week in early, late and weekend shifts. She was finally dismissed without notice on 30 April 2009. The accusation was that the plaintiff had switched off the bell and slept during her night shift.
Cancellation and legal action
The plaintiff took legal action against the dismissal with notice and also against the dismissal without notice. She argued that the extraordinary dismissal was unjustified as she had not committed a serious breach of duty during the night shift that would justify such a drastic measure. She also argued that her desire to be available during the day to look after her child was legitimate. The defendant, on the other hand, argued that the plaintiff's misconduct (switching off the bell and sleeping while on duty) posed a significant risk to patients and therefore justified immediate dismissal.
Decision of the Gießen Labour Court
The Giessen Labour Court ruled in favour of the plaintiff and declared the extraordinary dismissal invalid. Although the plaintiff's behaviour constituted a breach of duty, the dismissal was disproportionate. The court saw no need for termination without notice, as the plaintiff could have continued to be employed on day shift. A repetition of the accused behaviour, which had only occurred during the night shift, was not to be expected during the day shift.
Confirmation by the Hessian Regional Labour Court (LAG)
The Hessian Higher Labour Court confirmed the decision of the labour court. It also recognised a serious breach of duty, but considered the dismissal to be disproportionate. As the plaintiff could have been deployed on day shift, a continuation of the employment relationship under changed conditions would have been reasonable. The misconduct would probably not have been repeated during the day shift, which is why the dismissal was disproportionate.
Source: Hessian Regional Labour Court
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