Cologne Labour Court, 06.11.2014, Ref.: 11 Ca 3817/14
According to the case law of the Federal Constitutional Court, a handling of the law on damages that burdens the person filing a criminal complaint in good faith with the risk of damages in the event that he files an unsuccessful criminal complaint violates Article 2 (1) of the Basic Law and the principle of the rule of law.
It is therefore incompatible with the basic precepts of the rule of law if a person who has filed a criminal complaint in good faith and not recklessly without recognisable reason suffers disadvantages because his allegation proves to be incorrect or unclear after an official investigation.
However, this does not always apply. For example, the mutual duties of care that exist between employee and employer may mean that the criminal complaint of one of the parties entitles the other party to compensation.
In the above-mentioned judgement of the Cologne Labour Court, the court had to decide whether the employee had a claim for damages against the employer with regard to legal defence costs for a criminal complaint filed against him.
Facts of the Case:
Employee had received a criminal complaint for theft by the employer
The parties to this legal dispute disputed claims for damages in connection with a criminal complaint filed by the defendant against the plaintiff.
The plaintiff was employed by the defendant - a cash and valuables transport company - as a cash-in-transit driver in the period from 2 January 2013 to 18 March 2013.
On 18 February 2013, a 500 euro note was handed over to the defendant by one of its customers - a commercial bank in Cologne. On 20 February 2013, an employee of the defendant - Mr M. - handed over the banknote to the plaintiff. The plaintiff took this banknote to the police on the same day on suspicion that it might be counterfeit money in order to have the authenticity of the banknote checked. After the police had established the authenticity of the banknote, it was returned to the plaintiff.
The plaintiff then took the banknote to the defendant's branch in K. Straße, where he handed it over to employee W.. The plaintiff was not issued with a receipt for the handover of the banknote, although it is customary in the defendant's day-to-day business to issue receipts for the handover of money.
In a letter dated 18 March 2013, the plaintiff terminated the employment relationship for private reasons with effect from 20 March 2013, whereby the letter of termination contained the plaintiff's current address, his telephone number and his wife's email address. The notice of termination was confirmed by the defendant in a letter dated 18/03/2013.
After criminal proceedings were initiated, the plaintiff turned out to be innocent
In an email dated 10 April 2013, the defendant's customer enquired about the whereabouts of the banknote and the result of the authenticity check. As the whereabouts of the banknote could not be traced by the defendant, but it knew that the plaintiff had received the banknote from the police, the defendant assumed that the plaintiff had retained the banknote without conducting internal enquiries about the whereabouts of the banknote or questioning the plaintiff about this. For this reason, the defendant filed a criminal complaint against the plaintiff with the K police through one of its employees on 7 May 2013.
In an email dated 29 June 2013, the plaintiff made a statement to the defendant about the incident in question and explained that on the day in question he had been instructed by the staff present at the defendant's head office to hand the banknote to a "lady in the personnel office". Although he no longer remembered the name of the employee, two other employees, a man and a woman, were present when the money was handed in.
After the plaintiff was questioned by the police as an accused person on 2 July 2014, he instructed his current legal representative in the present proceedings on 4 July 2014 to represent his legal interests in the criminal investigation proceedings.
Public prosecutor's office discontinued proceedings - employee demands compensation from employer
By order dated 13 February 2014, the public prosecutor's office in Cologne then discontinued the investigation proceedings against the plaintiff in accordance with Section 170 (2) of the Code of Criminal Procedure.
The background to the termination of the investigation proceedings was an internal company interview with Ms W., in which she stated that she remembered being handed a sealed "safebag" containing a EUR 500 note by an employee from the cash and valuables transport department in her office on 20 February 2013. Furthermore, Mrs W. stated that she was familiar with the plaintiff's name, but that she could no longer remember what he looked like.
The plaintiff was invoiced € 567.63 by his legal counsel for legal services in connection with his criminal representation, which he paid.
In a letter dated 14 April 2014, the plaintiff's representative requested the defendant to reimburse the plaintiff for this amount, setting a deadline of 30 April 2014 for the reimbursement of damages. In a letter dated 22 April 2014, the defendant refused to reimburse the amount.
The employer did not conduct a social selection process.
The Labour Court now ruled that the plaintiff had a claim for damages against the defendant in the amount of € 567.63 under Sections 611, 280 para. 1, 241 para. 2 BGB.
Court considers employee's claim for damages to be given
It was undisputed that an employment relationship existed between the parties in the period from 2 January 2013 to 18 March 2013. In the opinion of the court, the fact that the employment relationship had already ended at the time the defendant filed the complaint was irrelevant to the defendant's liability for damages.
In the employment relationship, there are a large number of secondary obligations with subsequent effect that employers and employees can fulfil either by virtue of an express statutory provision or on the basis of general principles. These include the employer's duty to take into account the rights, legal interests and interests of the employee, which was previously derived from Section 242 BGB and is now standardised in Section 241 (2) BGB.
Employer's duty of care would continue to exist after the employment relationship
This duty of care begins with the establishment of the employment relationship and, in individual cases, continues even after the termination of the employment relationship. The (former) employer may therefore not cause disadvantages to the (former) employee without good reason or expose them to the risk of harm.
The defendant breached this duty by filing the report - without first conducting its own enquiry into the whereabouts of the banknote. The defendant would have been obliged to first question the plaintiff personally about the facts of the case.
It is true that the Federal Constitutional Court ruled in its judgement of 25 February 1987 (Ref.: 1 BvR 1086/85) that the person filing a criminal complaint in good faith should not be burdened with the risk of a claim for damages directed against him if the complaint does not lead to the alleged accusation being proven.
However, it must be borne in mind that the filing of a criminal complaint is an option permitted and approved by the legal system and that the filing of a criminal complaint by a citizen is in the general interest of maintaining legal peace and investigating criminal offences. The risk of an obligation to pay costs in cases in which the accusation of an offence later turns out to be false or untrue could deter citizens from the possibility of filing a criminal complaint, to which everyone is in principle entitled, which constitutes a violation of Article 2(1) of the Basic Law in conjunction with the principle of the rule of law. Section 469 of the Code of Criminal Procedure offers sufficient protection against deliberately false suspicions and frivolous reports, i.e. reports that are made without any recognisable reason (BVerfG, judgement of 25 February 1987 - 1 BvR 1086/85).
Accordingly, the conditions for a claim for damages were not met in the present case, as it was not apparent that the defendant had knowingly made the criminal complaint untruthfully or recklessly without any recognisable reason.
However, these principles established by the Federal Constitutional Court in its decision of 25 February 1987 had to be deviated from in the present case due to the special circumstances arising from the employment relationship. Due to the post-contractual duty of care that exists in labour law and has already been discussed, the defendant would have been obliged in the present case to question the plaintiff about the incident in question on 20 February 2013 before filing the criminal complaint in order to clarify the facts of the case in this way.
The employee should have been consulted beforehand
For example, it is established case law in connection with a suspected dismissal that the employee must be heard before the dismissal is announced. Hearing the employee is therefore always a necessary means of clarifying the facts of the case.
With regard to a breach of duty by the employee, it is also in line with case law in the case of reports to law enforcement authorities or other competent bodies not always to deny a breach of duty contrary to the contract if the employee makes the report without knowingly or recklessly making false statements.
Criminal charges would not have been necessary
A complaint could be grounds for dismissal, regardless of proof of the reported misconduct and its criminal nature, if it would constitute a disproportionate reaction to the behaviour of the employer or one of its representatives. Conversely, these standards should also apply to the employer in the context of its duty of care towards the employee.
In the opinion of the Chamber, such a procedure with a hearing of the plaintiff would have meant that the facts of the case could have been clarified even without investigative measures by the public prosecutor's office. In his statement to the defendant dated 29 July 2013, the plaintiff stated that he had handed over the banknote in question to a lady in the personnel office, whereby two other people, a man and a woman, were present in the personnel office at the time of the handover.
However, the plaintiff would not have told the defendant anything else if the defendant had heard the plaintiff personally about the incident before filing the complaint. This would have enabled the defendant to establish the identity of Mrs W. and question her about the incident.
Particularly in view of the fact that employee W. stated in an internal interview with employee H. - that she believed she remembered being handed a sealed safebag containing a 500 euro note by an employee from the cash and valuables transport department in her office on 20 February 2013, it must be assumed that employee W. would also have provided this information after prior questioning by the defendant and that the filing of the criminal complaint would therefore not have taken place or would not have been necessary due to the associated clarification of the facts.
Insofar as the defendant objected that it had decided to file a complaint in order to counteract the risk that the potential perpetrator could no longer be identified and convicted due to the lapse of time, the fact that the defendant had already learned of the "loss" of the banknote from its customer's email of 10 April 2013 and only filed a criminal complaint on 7 May 2013 - i.e. approximately four weeks later - speaks against this. In this respect, the defendant's argument is misguided if, on the one hand, it invokes the need for swift action but, on the other hand, allows approximately four weeks to pass before filing charges against the plaintiff.
The defendant also acted negligently and therefore culpably. The defendant could have recognised that the plaintiff had handed over the banknote to the employee W. on 20 February 2013 if it had exercised the care required in traffic.
Source: Employment Court Cologne
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