Federal Labour Court, 25.10.2012, Ref.: 2 AZR 495/11
Before an extraordinary dismissal, the employer must first give the employee a proper warning (Section 314 (2) BGB).
However, the warning may be omitted in the event of particularly serious breaches of duty or in the event of a breach of trust if the employee could assume that their behaviour would not be condoned.
The warning can be issued either in writing or verbally. For reasons of preserving evidence, however, a written warning is preferable.
The warning must describe the disapproved behaviour in detail, the employee must be requested to behave in accordance with the contract in future and the employee must be threatened with the consequences under employment law (dismissal) in the event of another breach of contract.
In the Federal Labour Court case mentioned above, the court had to deal with the question of whether a chief physician who made private calls on his mobile phone during operations had to be warned before being dismissed without notice.
Case Background
The plaintiff had been employed by the defendant as head physician in the Department of General and Visceral Surgery since 2005. His employment contract stipulated that he was responsible for the professional management and medical care of patients. The contract allowed for termination without notice for good cause after the end of the probationary period. However, the plaintiff frequently took his private mobile phone into the operating theatre to make private calls, which caused considerable disruption to the surgical team.
Cancellation by the defendant
On 26 September 2008, the defendant terminated the employment relationship with the plaintiff without notice because he repeatedly took private telephone calls during operations, regardless of the disruption this caused. This practice was perceived as extremely disruptive by the surgical team, although the patients were not made aware of it during anaesthesia. Despite repeated requests from anaesthetists to refrain from the phone calls, the plaintiff continued his behaviour.
Decision of the Federal Labor Court
The Federal Labour Court confirmed the decisions of the lower courts, which had upheld the plaintiff's claim. It found that an extraordinary dismissal was only justified if it would be unreasonable to continue to employ the employee until the end of the notice period. In the assessment, the employer's interest in terminating the employment relationship had to be weighed against the employee's interest in continuing the employment relationship. The case required an overall assessment, in particular taking into account the severity of the breach of duty and the possibility of achieving a change in behaviour through a warning.
Significance of the warning
The court emphasised that extraordinary dismissal could only be considered if milder measures, such as a warning, were not suitable to prevent future disruptions to the employment relationship. Although the plaintiff had significantly breached his contractual obligations, it was reasonable for the defendant to continue to employ him. The court found that a warning would have been sufficient to correct the plaintiff's behaviour and minimise the risks of future disruptions.
Source: Federal Labor Court
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