Hessian Regional Labour Court, 25.07.2011, Ref.: 17 Sa 153/11
Pursuant to Section 626 (1) BGB, the employment relationship can be terminated by either party 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 circumstances of the individual case and weighing the interests of both parties to the contract.
An important reason is therefore generally required for the validity of extraordinary termination in accordance with Section 626 BGB, which is declared without notice or with a social expiry period.
If such a reason exists, a weighing of interests must nevertheless be carried out on the basis of the principle of proportionality in order to determine whether continued employment of the employee concerned until the end of the ordinary notice period would be reasonable.
Important reasons for extraordinary termination may include the following:
Refusal to work, unauthorised leave, assault, insult, discrimination against foreigners, bribes/bribery, theft or expense fraud.
Until recently, the Federal Labour Court ("BAG") had also considered dismissals without notice to be justified in the case of theft of low-value items. This changed with the "Emmely" case.
In the above-mentioned case, the Hessian State Labour Court had to decide whether an employee could be dismissed for cause if he had used his company mobile phone for private purposes at the employer's expense for more than 500 euros while on holiday abroad.
FactsThe plaintiff, who was married and dependent on two children, had been employed by the defendant as a driver for around 25 years. The plaintiff was severely disabled with a GdB of 50.
The defendant was a subsidiary of a major German airline and had more than 10 employees.
The employment relationship of the parties was subject to the collective labour agreement No. 14 for ground staff concluded for the area of the defendant by virtue of individual contractual reference.
Pursuant to § 41 (3) MTV No. 14, ordinary dismissal by the defendant, including ordinary dismissal with notice of change of contract, was excluded after a period of employment of 15 years.
In the "Transport" division, in which the plaintiff also worked, the defendant provided employees with mobile phones for business use.
The mobile phones were used in particular for communication between the lift truck drivers and the operations centre and other internal contacts.
It was undisputed that the calls made by the plaintiff from abroad on his mobile phone during his holiday were not made for business purposes.
In 2004, the plaintiff had already confirmed receipt of a mobile phone by signing the letter pre-formulated by the defendant.
The pre-formulated letter contained the following passage, among others:
"Please note that the mobile phone may not be passed on to third parties. The above telephone number is for business use only. The private DuoBill pin number must be used for private calls."
Via this. This "duo-bill function" or "twin-bill function" offered employees a private telephone number and a private PIN number, which they could use to dial into their mobile phones for private use.
The plaintiff opted for this option when handing over the mobile phone.
At the end of 2009 and the beginning of 2010, the defendant carried out audits of the accounts for company mobile phones of individual employees, including the plaintiff's mobile phone.
Due to anomalies in the verified billing of the service number of the plaintiff's company mobile phone, he was initially provisionally suspended from work in a letter dated spring 2010 and heard on the matter in a further letter, also dated spring 2010.
The plaintiff responded with various letters from his legal representative.
In a letter dated 25 February 2010, the defendant applied for the approval of the Integration Office for the extraordinary termination of the plaintiff without notice and alternatively for extraordinary termination with a social expiry period.
By decision dated 11 March 2010, the Integration Office refused consent. The defendant lodged an appeal against this.
In the meantime, the defendant had received the telephone bill together with itemised bills for the service number of the plaintiff's company mobile phone for February 2010, which showed an amount of € 973.88 for outgoing telephone calls abroad alone (pro rata cost burden taking into account discounts granted in this respect according to the defendant € 564.85) in the period between 2 February 2010 and 12 February 2010.
In a letter dated 9 March 2010, the defendant also heard the plaintiff on this matter and, in a letter dated 15 March 2010, again requested the approval of the Integration Office for the extraordinary dismissal of the plaintiff without notice and, alternatively, for extraordinary dismissal with a social expiry period.
The Integration Office then declared its approval. The plaintiff in turn lodged an objection to this with the Integration Office.
In a consultation letter dated 29 March 2010, the defendant consulted the works council on an intended extraordinary termination without notice and an intended alternative extraordinary termination with an expiry period.
The works council objected in a letter dated 6 April 2010. In a letter dated 7 April 2010, the defendant nevertheless declared extraordinary termination without notice and, alternatively, extraordinary termination with a social expiry period.
On 8 April 2010, the plaintiff filed an action for protection against dismissal with the Frankfurt am Main Labour Court.
In an objection decision dated 17 August 2010, the objection committee at the competent integration office rejected the plaintiff's objection to the decision dated 20 March 2010 and upheld the defendant's objection to the decision dated 11 March 2010, annulled it and granted the approval requested in this respect.
In a consultation letter dated 15 July 2010, the defendant consulted the works council on a further intended extraordinary termination without notice and an intended alternative extraordinary termination with a social expiry period.
The works council objected again in a letter dated 16 July 2010.
In a letter dated 20 July 2010, the defendant again declared the extraordinary termination of the employment relationship without notice to the plaintiff.
The plaintiff objected to this with his extended claim received by the Labour Court on 23 July 2010.
In a further letter dated 23 July 2010, the defendant alternatively declared extraordinary termination with a social expiry period.
The plaintiff objected to this with his further extension of the claim received by the Labour Court on 10 August 2010.
In his complaint and the amendments to the complaint, the plaintiff stated that either he had mistakenly failed to use the twin-bill function when using the mobile phone abroad or he had inadvertently failed to inform the defendant's HR department of the telephone calls made.
He had never intended to charge private telephone costs to the defendant and was of course prepared to reimburse the amounts resulting from the defendant's statements.
The plaintiff also argued that the change of mobile phone contract partner and the replacement of the mobile phones had led to changes in the technical usage restrictions, which the defendant had not pointed out.
In order to counteract the incorrect use, the defendant should have pointed out the changed technical restrictions to the employees.
In addition, the defendant had not properly complied with the deadline set out in Section 626 (2) BGB and warnings should have been issued prior to the dismissals.
Accordingly, the plaintiff applied for a declaration that the employment relationship between the parties had not been terminated by the defendant's notice of termination of 7 April 2010, and for a declaration that the employment relationship had not been terminated by other termination events either, but had continued on unchanged terms beyond 31 December 2010, and for a declaration that the employment relationship between the parties had not been terminated by the defendant's notice of termination of 20 July 2010 or 23 July 2010 either.
The Frankfurt am Main District Court dismissed the claim in the general declaratory judgement, 3 Ca 2530/10, delivered on 2 December 2010, and granted the remainder of the claim.
It essentially stated that the defendant should have first issued a warning to the plaintiff.
The defendant lodged an appeal against the judgement of the Frankfurt am Main District Court with the Hessian Regional Court on 2 February 2011.
Hessian State CourtThe Hessian Regional Court followed the view of the defendant and appellant.
In the opinion of the Hessian Regional Court, the employment relationship had already been terminated without notice by the defendant's extraordinary termination of 7 April 2010, as there was good cause within the meaning of Section 626 (1) BGB for the termination of 7 April 2010. § Section 626 (1) BGB for the termination of 7 April 2010.
The existence of good cause is to be assessed as part of a two-stage examination.
In the context of Section 626 (1) BGB, it must first be examined whether a certain circumstance is in itself suitable as an important reason for termination without the special circumstances of the individual case.
If such a situation existed, a further examination would be required to determine whether the continuation of the employment relationship was reasonable or not, taking into account the specific circumstances of the individual case and weighing up the interests of both parties to the contract.
The prognosis principle also applies to dismissal for behavioural reasons.
In this respect, the purpose of the termination is not a sanction for a breach of contract that has been committed, but to avoid the risk of further significant breaches of duty.
The past breach of duty must therefore still have a negative impact in the future.
A negative prognosis would exist if it could be concluded from the specific breach of contract and the resulting breach of contract that the employee would breach the employment contract again in the same or a similar manner even after a threat of termination.
For this reason, a termination due to a breach of contract regularly requires a warning.
In this context, the warning serves to objectify the negative prognosis.
If a proper warning has been issued and the employee breaches their contractual obligations again, it can generally be assumed that there will be further breaches of contract in the future.
In this respect, the warning is a necessary component in the application of the prognosis principle.
It is also an expression of the principle of proportionality.
Termination is not justified if there are other suitable milder means of eliminating the breach of contract in the future.
Insofar as controllable behaviour is concerned, the dismissal must generally be preceded by an unsuccessful warning, unless it is not promising or it is a serious breach of duty in which the unlawfulness of the employee's actions is readily apparent to the employee, as is the fact that acceptance of his behaviour by the employer is obviously impossible.
Furthermore, according to established case law of the Federal Labour Court, not only a proven breach of contract, but also the serious suspicion of a criminal offence or other misconduct under the employment contract can constitute good cause for extraordinary dismissal of the suspected employee.
A dismissal on suspicion would therefore be deemed to have occurred if and insofar as the employer justifies its dismissal by stating that the suspicion of (unproven) criminal or non-contractual behaviour has destroyed the trust required for the continuation of the employment relationship.
In the opinion of the Hessian Higher Labour Court, the defendant in the present case had presented sufficient objective facts to justify the serious suspicion that the plaintiff had deliberately used the company mobile phone provided to him in February 2010 to make private telephone calls abroad in breach of contract.
The unauthorised private use of a company mobile phone provided by the employer in order to secretly make extensive private phone calls at the employer's expense is in itself suitable to constitute good cause within the meaning of Section 626 para. § Section 626 (1) BGB for extraordinary termination of the employment relationship.
The private use of the company mobile phone provided to make telephone calls abroad was not permitted by the defendant. This was already evident from the declaration signed by the plaintiff.
The strong suspicion that the plaintiff had (also) used the company mobile phone provided to him in February 2010 to make private telephone calls abroad and had thereby incurred costs of at least € 564.85 (adjusted) had been presented by the defendant and had not been shaken or refuted by the plaintiff's submission in the legal dispute and by his statement during the hearing by the defendant.
Furthermore, a warning was unnecessary, since the defendant's acceptance of a breach of duty of this kind - even if only for the first time - was obviously ruled out.
Based on the behaviour of the defendant, the plaintiff could not assume that the defendant had tolerated the private use of the business mobile phone in business mode and at its own expense for making private calls abroad.
However, the plaintiff's social data would speak in his favour. It should also be considered in his favour that the long-term employment relationship was at least essentially free of complaints and successful.
The relatively low chance of finding a comparable job with comparable conditions would also speak in his favour.
However, the considerable loss of trust, the amount of the costs caused by private use and the fact that the trust in the integrity of the plaintiff required for the continuation of the employment relationship had been destroyed would speak in favour of the defendant.
In addition, when an employee is given possession of a company mobile phone, there are only limited possibilities for control, particularly in the employee's private sphere, and for this reason an increased need for trust must be recognised.
The defendant's interest in terminating the contract is also supported by the fact that, for reasons of company discipline, it wanted to consistently counteract the cost-generating private use of the work equipment provided and document that such misuse would not be tolerated.
The notice period was also complied with, whereby Section 626 (2) BGB was not directly applicable in this case, but Section 91 (5) SGB IX.
The defendant had applied for the approval of the Integration Office within two weeks of becoming aware of the facts relevant to the dismissal (Section 91 (2) SGB IX).
After becoming aware of the approval on 29 March 2010, it immediately initiated the consultation procedure, namely by letter received by the works council on the following day.
The dismissal of 7 April 2010 was also not invalid pursuant to Section 102 (1) sentence 3 BetrVG, as the defendant had duly consulted the works council formed at the company regarding the plaintiff's dismissal.
Source: Hessian Regional Labour Court
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