Regional Labour Court Cologne, 07.05.2014, Ref.: 11 Sa 905/13
Insults towards the employer, colleagues or superiors may entitle the employer to dismiss the employee without prior warning.
In the case of gross insults, these can even justify extraordinary dismissal (without notice). This also applies to threats against the employer, colleagues or superiors.
However, it should be noted that the respective circumstances of the individual case are always decisive. If, for example, the insults are made by the employee in the context of a dispute in which the employer itself is guilty of unworthy behaviour, it may well be that an insult by the employee does not justify dismissal.
In the Regional Labour Court case discussed here, the employee had called a superior a colleague's pig during a reintegration interview and was subsequently dismissed.
Facts of the Case:
Plaintiff was severely disabled and wanted to be transferred to another team
The plaintiff, born on 7 January 1956, single, severely disabled with a degree of 30%, had been working for the defendant, which employs around 1,500 people, as a technical employee since October 2007 and was deployed on the test bench.
The plaintiff suffered from health problems which he attributed to the working conditions on the test bench. From 25 October 2012, the plaintiff was continuously unfit for work.
When he was refused a transfer, he called his team leader a pig of a colleague
At the invitation of the defendant, a reintegration interview was then held with the plaintiff on 4 February 2013. During the reintegration interview, the plaintiff unsuccessfully sought to be transferred to another team. He stated that he did not accept his superior, team leader B, and called him a "colleague pig". After the plaintiff had consulted with works council member R, he agreed to the defendant's reintegration plan at the end of the reintegration interview and thus to employment in the previous team.
As a result, the plaintiff was dismissed without notice and alternatively with notice
The defendant consulted the works council in a letter dated 14 February 2013 regarding the intended extraordinary, or alternatively ordinary, termination of the plaintiff's employment contract. It stated that the plaintiff had repeatedly referred to team leader B as a colleague's pig in a defamatory manner during the reintegration interview. As a result, the works council raised concerns about the extraordinary termination on 13 February 2013 and lodged an objection to the ordinary termination of the employment relationship. Nevertheless, the defendant terminated the employment relationship in a letter dated 15 February 2013 without notice, or alternatively with notice.
Labour court ordered the company to continue employment - company files an appeal
The labour court initially seized upheld the action for protection against dismissal filed by the plaintiff in a ruling dated 10 October 2013 and ordered the defendant to continue to employ the plaintiff until the legally binding conclusion of the dismissal protection proceedings. The defendant lodged an appeal against this judgement with the Cologne Regional Labour Court.
Judgement of the Cologne Regional Labour Court
The Regional Labour Court again followed the plaintiff's opinion and also dismissed the appeal against the judgement of the Cologne Labour Court.
The dismissal of 15 February 2013 did not terminate the parties' employment relationship without notice in accordance with Section 626 (1) BGB or with due notice (Section 1 (2) sentence 1 KSchG) with effect from 30 June 2013, as the dismissals proved to be disproportionate and did not stand up to a weighing of interests due to the particular circumstances of the individual case.
Court of Appeal also does not see sufficient grounds for termination
Circumstances relating to the employee's behaviour would suffice for a dismissal for conduct-related reasons if, on a reasonable assessment of the interests of the contracting parties, the dismissal at least appears to be reasonable and appropriate. In particular, a culpable, reproachable and unlawful or non-contractual breach of duty arising from the employment relationship is suitable as a behavioural reason. Circumstances would suffice which, from the perspective of a calm and reasonable employer, make the dismissal appear to be an appropriate response to the employee's misconduct (BAG, judgement of 17 January 2008 - 2 AZR 536/06 - with further references). Gross insults of the employer, its representatives or colleagues would constitute a significant breach of the employee's contractual duty of consideration (Section 241 (2) BGB) and are "in themselves" suitable to justify even an extraordinary termination without notice (BAG, judgement of 07/07/2011 - 2 AZR 355/10 - with further references).
According to the prognosis principle, the offence would not be sufficient for dismissal
However, the law does not recognise any absolute grounds for termination; rather, each individual case must be assessed separately. The justification of a dismissal for misconduct is not to be measured by whether it is appropriate as a sanction for the breach of contract in question. In termination law, it is not the sanction principle that applies, but the prognosis principle. A dismissal for conduct-related reasons is justified if trouble-free fulfilment of the contract can no longer be expected in the future and future breaches of duty can only be countered by terminating the contractual relationship (BAG, judgement of 10 June 2010 - 2 AZR 541/09 - with further references).
This is not the case if milder means and reactions on the part of the employer - such as a warning - would have been suitable to bring about future contractual compliance on the part of the employee. If the breach of contract is based on controllable behaviour on the part of the employee, it can generally be assumed that the employee's future behaviour can be positively influenced by the threat of consequences for the continuation of the employment relationship. According to the principle of proportionality, a warning is only not required if it is already apparent ex ante that a change in behaviour cannot be expected in the future even after a warning, or if the breach of duty is so serious that even accepting it for the first time would be unreasonable for the employer according to objective standards and therefore obviously - even recognisably for the employee - impossible. In addition, a comprehensive balancing of interests must always be carried out in the event of termination for conduct-related reasons, whereby the employee's interest in the continuation of the employment relationship must be weighed against the employer's interest in terminating the employment relationship (BAG, judgement of 11 July 2013 - 2 AZR 994/12 - with further references).
The plaintiff had grossly insulted his work colleague B by calling him a "colleague pig" and thus seriously breached his contractual duty of consideration. The plaintiff does not dispute this. The considerable defamation of the team leader did not have to be accepted by the defendant without sanctions.
For reasons of proportionality, only one warning should have been issued
However, the Labour Court had already correctly pointed out that a warning would have been a suitable and appropriate response by the defendant for reasons of proportionality. Since the insult was controllable behaviour, it could generally be assumed that the plaintiff's future behaviour could be positively influenced by the threat of consequences for the continuation of the employment relationship. The defendant had not shown that a change in behaviour was not to be expected - e.g. due to a lack of insight. Nor was it such a serious breach of duty that the prior issuing of a warning was unnecessary.
Source: Regional Labour Court Cologne
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