Labour law: No termination without notice due to repeated handling of private matters

Paderborn Labour Court, 21.07.2010, Ref.: 2 CA 423/10

Pursuant to Section 626 BGB, the employment relationship can be terminated by either party to the contract for good cause without observing a notice period if there are facts on the basis of which the terminating party cannot reasonably be expected to continue the employment relationship until the expiry of the notice period or until the agreed termination of the employment relationship, taking into account all the circumstances of the individual case and weighing up the interests of both parties to the contract.

The decision as to whether the employer can be expected to wait for the notice period is often the subject of court decisions. In its decision of 4 March 2009 (case reference: 3 Sa 410/08), the Schleswig-Holstein Regional Labour Court came to the conclusion that the termination without notice of an employee who had been guilty of sexual harassment in the workplace was unlawful because the employer could reasonably be expected to continue to employ the employee until the end of the ordinary notice period. This was justified by the LAG Schleswig-Holstein on the basis of the employee's long period of service (over 15 years) and the absence of assaults in the workplace.

The Paderborn Labour Court has now had to decide another case of the validity of an ordinary and extraordinary dismissal in the above-mentioned ruling.

FactsThe plaintiff (employee) had been employed by the defendant (employer) as a building yard employee for over 19 years. In 2007, the defendant terminated the employment relationship with the plaintiff due to illness. The plaintiff filed an action for unfair dismissal against the dismissal with the Paderborn Labour Court. In 2008, the Paderborn Labour Court dismissed the action. Following the plaintiff's appeal, the Hamm Regional Labour Court amended the judgement of the Paderborn Labour Court and upheld the action (case no.: 17 Sa 531/08). As a result, the plaintiff continued to be employed by the defendant in accordance with his contract.

After the plaintiff had already been warned by the defendant for another incident, he behaved in breach of contract on two further occasions in the defendant's opinion (going to a friend's house and going to a bank during working hours).

In April 2010, the defendant gave the plaintiff extraordinary notice of termination. The plaintiff challenged this dismissal with an action for unfair dismissal.

Paderborn Labour CourtIn the opinion of the Paderborn Labour Court, there was no good cause for terminating the employment relationship in accordance with Section 626 (1) BGB. The repeated conduct of private matters during working hours and the non-performance of work were not generally unsuitable to constitute good cause within the meaning of Section 626 (1) BGB, as this not only violated the work obligation but also the relationship of trust existing between the parties. However, the plaintiff's behaviour was not so serious that compliance with the relevant notice period was unreasonable. In this respect, the extraordinary dismissal was unjustified.

Source: Paderborn Labour Court

Important Note: The content of this article has been prepared to the best of our knowledge and belief. However, due to the complexity and constant evolution of the subject matter, we must exclude liability and warranty. Important Notice: The content of this article has been created to the best of our knowledge and understanding. However, due to the complexity and constant changes in the subject matter, we must exclude any liability and warranty.

If you need legal advice, feel free to call us at 0221 – 80187670 or email us at info@mth-partner.de.

Attorneys from Cologne provide nationwide advice in employment law.