Cologne Regional Labour Court, 22.01.2013, 11 Sa 783/12
The unexcused absence of an employee is generally suitable to be the subject of termination without notice by the employer. This is particularly relevant during holiday periods if the employee takes their holiday without the employer's permission. Nevertheless, in most cases appropriate warnings will be required beforehand.
It is questionable which standards should be applied in terms of labour law in the case of a training relationship. In this respect, there is a general consensus in case law that the same standards that are applied to the employment relationships of adult employees cannot be used when examining the relevance of a trainee's behaviour in breach of contract for the purposes of dismissal.
This is because trainees are often older young people and adolescents whose mental, character and physical development is not yet complete.
In accordance with § 14 Para. 1 No. 5 BBiG, it is also part of the trainer's duties to promote the trainee's character.
Section 14 (1) BBiG explains this:
Trainers have
to ensure that the trainees are taught the vocational skills required to achieve the training objective and to organise the vocational training in a form required by its purpose in terms of plan, time and subject matter in such a way that the training objective can be achieved within the planned training period,
train themselves or expressly commission a trainer to do so,
to provide trainees free of charge with the training resources, in particular tools and materials, which are required for vocational training and for taking intermediate and final examinations, even if these take place after the end of the vocational training relationship,
encourage trainees to attend vocational school and to keep written training records, insofar as these are required as part of the vocational training, and to review these,
to ensure that trainees are encouraged in terms of character and are not morally or physically endangered.
In the above-mentioned case, the Cologne Higher Labour Court had to decide on appeal whether the termination without notice of a trainee was justified because she had been absent from her trainer's company for two weeks without being excused.
Introduction and Facts
The plaintiff had been employed by the defendant as a trainee goldsmith since September 2008. In May 2011, she was placed on sick leave but continued to attend vocational school despite a doctor's certificate. This led to a warning letter from the defendant, who doubted that the plaintiff was unfit for work. When the plaintiff continued to be absent without excuse after the end of her sick leave, the defendant terminated the training contract without notice. The plaintiff passed her final examination in July 2011 and took legal action against the dismissal. The labour court ruled in her favour, whereupon the defendant lodged an appeal with the Cologne Regional Labour Court.
Decision of the Cologne Regional Labour Court
The Cologne Regional Labour Court (LAG) confirmed the decision of the Labour Court that the termination without notice on 30 May 2011 did not terminate the training relationship. Pursuant to Section 22 Para. 2 No. 1 BBiG, termination without notice can only take place for good cause that makes it unreasonable for the trainer to continue the training relationship. The period of training already completed must also be included in the decision. The plaintiff's unexcused absence over a longer period of time could in principle constitute grounds for termination, but not without a prior, effective warning.
Ineffective warning and medical certificate
The LAG found that the warning letter of 20 May 2011 was unlawful, as the plaintiff was on sick leave from 4 to 13 May 2011 during the period in question. The plaintiff's attendance at vocational school was based on the express recommendation of her doctor, who was in favour of her attending the school despite her illness in view of the upcoming final examination. The defendant had not disputed this medical advice. Since a warning can only fulfil its warning function if it is objectively justified, it could not serve as the basis for a dismissal for conduct-related reasons in this case.
Balancing of interests and proportionality
The extraordinary dismissal also failed due to a lack of proportionality. Despite the plaintiff's unexcused absence from 14 May 2011, the defendant was unable to prove that the plaintiff's absence caused any serious operational problems. In addition, the plaintiff was about to take her final examination, which significantly increased her interest in continuing the training relationship. The LAG therefore ruled that the plaintiff's interest in continuing her employment outweighed the defendant's interest in terminating it and that the termination without notice was invalid. The defendant was also obliged to pay the outstanding training allowance and to issue a reference.
Source: Regional Labour Court Cologne
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