Federal Labour Court, 03.11.2011, Ref.: 2 AZR 748/10
According to the case law of the Federal Labour Court, a dismissal for conduct-related reasons is justified if there are circumstances in the employee's conduct which, on a reasonable assessment - weighing up the interests of the employee and employer - make the dismissal appear fair and appropriate.
Dismissals for behavioural reasons can be based on a wide variety of breaches of contract by the employee.
The following breaches of contract are just a few examples:
- alcohol-related misbehaviour
- Late or missing sick note
- unauthorised commencement of leave or unexcused absence
- general poor performance of the employee
- Assault in the company
In order to justify a termination for misconduct, in addition to the established breach of contract, the negative prognosis and the lack of
The employer must comprehensively weigh up the interests of the employee before deciding on the possibility of continued employment.
As part of the action for protection against dismissal, the court then examines whether the employer can still be reasonably expected to continue the employment relationship.
The severity of the breach of duty or the employee's previous behaviour, for example, are then weighed up.
In the above-mentioned judgement, the Federal Labour Court had to decide whether a dismissal for conduct-related reasons could be based on the fact that the employee had given insufficient notice of his incapacity to work and had not deposited the key to a company car and the corresponding logbook at the company.
1. Facts and Background
The plaintiff, a single customer service technician, had been employed by the defendant since 1985 and most recently received a gross monthly salary of 3,000 euros. As the sole user of a company vehicle, he was obliged to hand in the vehicle key and logbook when he went on holiday or was ill. Due to his failure to comply with these regulations, he received a warning in 2003 and was dismissed without notice, but this was cancelled by the court.
In 2008, the plaintiff again disregarded the instructions to deposit his vehicle paraphernalia before going on holiday. The defendant discovered that the plaintiff's vehicle was blocking a car park without authorisation and instructed him to deposit his belongings properly. Despite repeated warnings, the plaintiff did not comply with this instruction and also failed to provide sufficient notification of his incapacity for work.
Cancellation and legal dispute
In February 2009, the defendant demanded that the plaintiff hand over the vehicle paraphernalia. As the plaintiff did not comply with this request, the defendant terminated the employment relationship with effect from 31 October 2009. The plaintiff brought an action for unfair dismissal, which was initially successful before the labour court. However, the Regional Labour Court dismissed the action on appeal by the defendant.
The plaintiff then appealed to the Federal Labour Court (BAG) to restore the decision of the labour court.
Decision of the Federal Labor Court
The BAG found that the Regional Labour Court had not sufficiently considered whether the dismissal was socially justified for reasons of conduct in accordance with Section 1 (2) KSchG. In particular, there were no findings regarding the size of the company, which is decisive for the application of the Dismissal Protection Act. The BAG emphasised that a dismissal for conduct-related reasons is only justified if the employee has significantly breached their contractual obligations and it cannot be expected that they will fulfil them in accordance with the contract in the future.
Conclusion and outlook
The BAG pointed out that the defendant had not put forward any special circumstances that could justify a dismissal despite the plaintiff's non-fulfilment of his duties, which could not be blamed. The plaintiff had substantiated that he was unable to fulfil his obligations during his illness. Consequently, the dismissal could not be based on legally tenable grounds.
Overall, the Regional Labour Court must reconsider the decision in light of these aspects in order to examine the social justification of the dismissal.
Source: Federal Labor Court
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