Rhineland-Palatinate Regional Labour Court, 06.09.2012, Ref.: 11 Sa 167/12
In labour law, there are three types of grounds for dismissal: Dismissal for operational reasons (e.g. due to a decline in sales, poor order situation or operational rationalisation), dismissal for behavioural reasons (drunkenness of the employee, assault in the workplace, etc.) or dismissal for personal reasons (frequent illness of the employee, poor performance, etc.).
1. Termination for operational reasons
In most cases, the reason for dismissal for operational reasons is a decline in sales or another deterioration in the employer's economic situation.
However, the employee is not unprotected in such cases either, as the employer must then make a social selection with regard to the dismissal if the conditions are met. In these cases, the employer must weigh up who is least dependent on the job among the employees to be dismissed.
2. Termination for behavioural reasons
Dismissal for behavioural reasons concerns breaches of duty committed by the employee during work.
In the event of serious breaches of duty, the employer can often terminate the contract immediately without notice.
In most cases, however, a warning from the employer is required first. This warning must be issued in good time, i.e. promptly, and must specifically describe the breach of duty. In addition, the warning must state that there is a risk of dismissal in the event of a repeat offence.
Many dismissals fail in the context of an action for protection against dismissal before the labour court due to a missing or incorrect warning.
3. Termination for personal reasons
Dismissal for personal reasons relates to objective reasons that lie in the person of the employee. The most common case of dismissal for personal reasons is dismissal due to illness of the employee.
However, dismissal due to frequent employee illness in particular is subject to strict conditions. The employer must first try to bridge the period of absence due to illness by taking other measures such as hiring temporary staff or temporarily reorganising the company. However, this only applies to the extent that it is reasonable for the employer to do so.
In the above-mentioned case before the Rhineland-Palatinate Regional Labour Court, the parties disputed the validity of an ordinary dismissal due to the employee's alcohol-related illness and the resulting absences.
Facts of the Case The unmarried plaintiff, born in 1970, had been employed by the defendant (industrial bakery) since 1 August 1991 at an average gross monthly salary of EUR 2,600.
There was no written employment contract. More than 10 employees worked for the defendant. There was no works council.
In 2010, the plaintiff was absent due to illness on 105 working days. At the turn of the year 2010/11, the plaintiff revealed an alcohol problem to the bakery manager. From 5 January 2012, the plaintiff spent a week in a specialist clinic for inpatient treatment. Following this, he was unable to work at home before starting a rehabilitation programme on 1 February 2011. He discontinued this after 5 days. This resulted in 26 working days of incapacity for work in 2011.
Subsequently, the plaintiff took two weeks of old leave and then returned to work in the bread department.
On 11 March 2011, the immediate superior conducted a return interview with the plaintiff.
In a letter dated 15 March 2011, the defendant terminated the employment relationship with effect from 31 October 2011.
The plaintiff brought an action against this before the Labour Court on 4 April 2011.
In mid-July 2011, at the request of the bakery manager, the plaintiff worked 6 instead of 5 days a week for three weeks.
Before the labour court first seised, the plaintiff argued that he had been absent from work in 2010 due to a lung disease. He had cancelled the rehabilitation programme in February 2011 for financial reasons, as he was dependent on the defendant's wages. He had never been noticed at work due to alcohol-related problems and continued to work unsupervised.
The defendant, on the other hand, argued that the plaintiff had not given any explanation for the interruption of the healing process in the return interview. He was neither willing nor able to undergo therapy, so that future failures due to the addiction had to be expected. It could be assumed as known in court that alcoholics suffer from a considerable loss of control and that unsupervised work in production operations is impossible. In addition, the considerable absences would jeopardise planning reliability in the company.
The labour court that was initially seized upheld the plaintiff's claim. The defendant lodged an appeal against this judgement.
Rhineland-Palatinate Regional Labour Court: The Higher Labour Court of Rhineland-Palatinate followed the opinion of the Labour Court and dismissed the appeal.
According to the RP Regional Labour Court, a dismissal due to alcohol addiction is to be assessed according to the principles applicable to dismissal due to illness.
In the context of a three-stage review, dismissal due to illness is only socially justified if, due to objective circumstances (in particular previous absences), further incapacity to work is to be expected for an unforeseeable period in the event of a long-term illness or, in the case of more frequent short-term illnesses, considerable absences due to illness must continue to be expected; the incurred and forecast absences lead to a considerable impairment of the employer's operational interests and, in the context of the comprehensive weighing of interests in the individual case, an unreasonable operational or economic burden on the employer would result.
In this respect, it is already questionable whether the short period from January 2010 to March 2011 is sufficient for the employer to be able to base a negative health prognosis on this.
As a rule, the past two to three years are used as a basis for forecasting. However, this is not mandatory. A sufficient indicative effect can also result from shorter periods.
However, even if a negative health prognosis was made in favour of the defendant due to
If the cancellation of the rehabilitation measure were to be assumed, the defendant would have failed to provide sufficient information on the considerable operational and economic impairments caused by the plaintiff's previous absences due to illness.
The defendant had not cited any economic burdens relevant to termination in the form of the costs of continued remuneration to be paid.
Insofar as she had referred to operational impairments, her submission in this regard remained abstract and therefore insufficient. Not a single addiction-related absence or addiction-related reaction of the plaintiff was presented, on the basis of which she had to feel obliged to constantly monitor the plaintiff's work.
The plaintiff had never been noticed in the company due to alcohol-related problems. Even if a single alcohol-related incident had been cited, this would not have justified the employer's assumption that this incident would - inevitably, so to speak - lead to significant operational disruptions.
The allegedly necessary constant monitoring of the plaintiff was not specifically described. In the absence of any submission by the defendant, it was not clear to what extent the plaintiff had been monitored more closely than his work colleagues since admitting to his alcohol problem.
In any case, this could not be associated with any serious interference with the defendant's organisation, as it had still considered it reasonable to deploy him for three weeks in July 2011 on 6 instead of 5 weekdays.
The defendant had not argued that the plaintiff's employment was only possible to a limited extent. Hazards for himself or others due to his work as a baker had not been presented.
Likewise, there was no specific submission regarding the times when the plaintiff was absent from work due to illness. The defendant had not explained why it would not be reasonable for it to deal with the plaintiff's absences in the future. Insofar as it referred to impairments in the planning reliability of the business, it did not explain what specific difficulties had arisen in the past and how it had dealt with them.
Contrary to the opinion of the defendant, it is not sufficient to refer to the considerable loss of control of alcoholics, which is known in court. Abstract criteria alone could not be relevant, as otherwise the second stage of examination of dismissal due to illness would become obsolete in the case of alcoholism. This would be contrary to the established case law of the Federal Labour Court cited above.
Source: Rhineland-Palatinate State Labor Court
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