Labour law: Suspicious dismissal, necessity of a reasonable period of time for a hearing

Facts and background

In this case, a development engineer (the plaintiff) brought an action against his employer (the defendant), a company in the plastics processing industry, due to a disputed transfer, a dismissal with notice of a change of contract and a dismissal on suspicion without notice. The plaintiff had been employed by the defendant since 2012 and had already successfully sued against previous dismissals. He was responsible for product development, but was verbally transferred to field service in June 2016, which he refused. A subsequent dismissal with notice of change of contract and dismissal without notice on suspicion of data misuse and theft were also contested.

The transfer

On 20 June 2016, the defendant instructed the plaintiff to work in the field in Mecklenburg-Vorpommern with immediate effect, which represented a clear deviation from his previous duties as a development engineer. Written confirmation of the transfer followed on 28 June 2016, which the plaintiff rejected as he was of the opinion that the transfer was not covered by the right to issue instructions. He also felt that the new job was unreasonable and not comparable to his previous position.

The Schleswig-Holstein Regional Labour Court (LAG) found that the transfer was indeed unlawful. The new tasks in the field service differed fundamentally from the plaintiff's previous duties and the activities were not equivalent. A reduction in salary for the new job was also planned, which increased the unreasonableness.

Change notice

On 28 June 2016, the defendant gave the plaintiff notice of dismissal with a change of contract with effect from 30 September 2016 in order to employ him permanently in the field. The plaintiff also contested this dismissal with notice of change. The plaintiff argued that there was no operational necessity for the dismissal with notice of change, as the research and development department had never actually been closed, but merely renamed. The defendant, in turn, claimed that the decision to close this department had already been made in 2013 and was confirmed by a corporate decision in 2016.

The court ruled in favour of the plaintiff. It found that the operational necessity for the dismissal with notice of change had not been sufficiently demonstrated. The reasons for the dismissal had already been the subject of previous proceedings and there were no new findings that would justify a dismissal with notice of change.

Suspicious dismissal

In July 2016, the defendant learnt that large amounts of data had been downloaded via the plaintiff's laptop. The suspicion arose that the plaintiff had misused company data and manipulated the laptop's hard drive. As a result, the defendant dismissed the plaintiff without notice on 12 August 2016.

The court ruled that the termination without notice was not lawful. Although there was suspicion against the plaintiff, the defendant had failed to properly hear him about the allegations. In particular, the deadline for the statement was set too short. The allegation of data misuse was also not sufficiently substantiated and it was established that the plaintiff had returned the laptop, albeit late and possibly the wrong one by mistake.

Errors in the works council hearing

The court also criticised the fact that the works council hearing prior to the dismissal was not carried out correctly. The defendant should have informed the plaintiff better about the allegations and given him more time to comment. In addition, the hearing letter should have been sent to the plaintiff's lawyer, as the defendant knew that the plaintiff was represented by a lawyer.

Judgement

The LAG Schleswig-Holstein ruled that both the dismissal with notice and the dismissal on suspicion without notice were invalid. The plaintiff had not been properly consulted and the allegations were not sufficiently substantiated. The transfer was also unlawful, as it was not within the scope of the employer's right of direction and the new position was not reasonable for the plaintiff. The employment relationship between the parties was therefore not terminated and the plaintiff's claim was largely successful.