Regional Labour Court Düsseldorf, 16.09.2015, Ref.: 12 Sa 630/15
The judgement below concerned an extraordinary dismissal due to calls made by the employee to a lottery hotline. In the alternative, the employee had also given notice of ordinary termination. In her lawsuit, the plaintiff then lodged a complaint against both dismissals and, at the hearing, only argued that the extraordinary dismissal was invalid.
Facts of the Case:
Employee was employed as a controller by the employer
The legal dispute concerned the validity of a dismissal without notice. The defendant employs fewer than ten employees. The plaintiff had been employed by the defendant since 1 February 2014 as an office administrator with a gross monthly salary of EUR 2,600.00. This was based on the employment contract dated 1 February 2014.
According to § 4 of the employment contract, she was responsible for the following tasks:
„Office organisation, processing of incoming mail, support with financial accounting, Payroll accounting, cash book management, archiving of receipts".
The plaintiff was responsible for checking incoming invoices and scanning them. She was not authorised to initiate the transfer of the invoice amount. She carried out these activities in a single office on the defendant's premises, which was directly adjacent to the managing director's office. The door in between was open during working hours.
The employees were also permitted to make private calls via the defendant's telephone system without having to pay for them separately. However, the defendant had not granted authorisation for special numbers subject to a charge. However, the defendant had not expressly prohibited this.
Employee made several calls via a lottery hotline
In January 2015, the plaintiff then made several calls to the competition hotline of a local radio station during work breaks to take part in the competition "The Mysterious Noise".
At the beginning of each call, the caller was informed that the call would cost €0.50 per call. At that time, the prize was 26,000.00 euros.
The plaintiff scanned the telephone bill for the month of January 2015 without referring to the calls she had made in the competition. A direct debit had been agreed with the telephone provider by the defendant, so that no bank transfer was required on the part of the defendant.
Subsequently, the managing director noticed that the telephone bill showed 37 units for the use of special numbers. On 19 February 2015, he approached the plaintiff, who pointed out to him that it was possible to find out who had made the calls by means of itemised billing.
On 20 February 2015, the plaintiff informed the managing director in his offices that she had made the calls to the lottery hotline and offered to reimburse an amount of EUR 18.50.
Employer terminates employee without notice, alternatively with notice
The defendant then terminated the employment relationship in a letter dated 23 February 2015 without notice, or alternatively with notice to 31 March 2015. The managing director handed the letter to the plaintiff personally on 23 February 2015.
The plaintiff claimed that she did not have a special position of trust in the defendant's hierarchy because, as a clerk, she checked accounts payable invoices on the basis of delivery notes. If an error occurred, she only roughly checked the incoming invoices by viewing them and scanned them into the defendant's system. The final check was always carried out by the managing director's wife.
She had dialled the chargeable lottery number, but not 37 times. However, she could no longer say how many times.
The telephone bill did not show the specific number, but all special numbers in the month of January together. The bill included all ten of the defendant's telephones. It was possible that other employees had also dialled special numbers.
Chargeable telephone calls were also made in the context of business-related activities, e.g. with dealers. The plaintiff had always made calls with the door open and had not wanted to conceal the calls. On 19 February 2015, she had simply not thought that the costs on the bill were related to the competition calls.
She realised this on the evening of 19 February 2015, whereupon she immediately informed the managing director on 20 February 2015.
Employee files dismissal protection claim with the labour court
On 24 February 2014, the plaintiff filed a lawsuit with the labour court and originally applied for a declaration that the employment relationship between the parties was not terminated by the termination without notice on 23 February 2015, but will continue at least until 31 March 2015.
Finally, it applied for a declaration that the employment relationship between the parties was not terminated by the termination without notice on 23 February 2015, but continued until 31 March 2015.
The defendant requested that the action be dismissed. There was a serious breach of duty on the part of the plaintiff, as she had occupied a particularly prominent position in her hierarchy, in which she had to check all invoices for their factual accuracy. By subsequently pointing out the incorrectness of an invoice, the management generally no longer had any possibility of preventing the further processing of the invoice payment.
By working in a single office, it was also not possible to monitor the activity. This was to be seen as a considerable leap of faith, which the plaintiff had abused. This was done deliberately and secretly in the knowledge that her actions were unlawful. She had charged the defendant with the costs, as she could also have made the calls using her own mobile phone.
She had initially acted surprised when she realised the costs and pointed out that it would surely be possible to find out who was responsible. She only admitted her misconduct because she realised that she could no longer hide it.
Court of first instance orders employer to continue employment
The labour court initially seized of the case upheld the action for protection against dismissal because the extraordinary dismissal without prior warning was not justified in the specific case, taking into account the interests of both parties.
The defendant lodged an appeal against this judgement on 16 June 2015 and substantiated it on 29 July 2015.
Appeal judgement of the Düsseldorf Regional Labour Court:
The LAG Düsseldorf also considers at least the termination without notice to be invalid
The LAG Düsseldorf ruled that the admissible appeal was unsuccessful because it was unfounded, as the labour court had rightly upheld the action for protection against dismissal, which was ultimately only related to the dismissal without notice and had been filed in good time.
The termination without notice of 23 February 2015 was invalid. The employment relationship was only terminated with the ordinary termination on 31 March 2015.
There is no justifiable good cause for termination without notice in accordance with Section 626 (1) BGB. According to Section 626 (1) BGB, the employment relationship can be terminated 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 even until the end of the notice period, taking into account all the circumstances of the individual case and weighing up the interests of both parties to the contract.
Special circumstances are therefore required which "in themselves", i.e. typically appear suitable as good cause. Only then can it be determined, taking into account the specific circumstances of the case, whether a continuation of the employment relationship is reasonable or not.
The circumstances on the basis of which it is to be assessed whether or not it was reasonable to expect the employer to continue to employ the employee at least until the end of the period for ordinary termination cannot be conclusively determined. The criteria are the weight and impact of a breach of contract, for example with regard to the extent of the loss of trust caused by it and its economic consequences, the degree of fault of the employee, a possible risk of repetition as well as the duration of the employment relationship and its undisturbed course.
If, in view of the overall circumstances, all milder response options are unreasonable, extraordinary termination is justified. However, if ordinary termination is also suitable to avoid the risk of future disruptions, termination without notice is ineffective.
Court sees no good cause for termination without notice
The requirements for good cause within the meaning of Section 626 (1) BGB would not be met.
Although the breach of duty committed was generally suitable, a decision in favour of the plaintiff was to be made in consideration of the specific circumstances of the case.
Calling the hotline constituted a breach of duty. However, it had to be taken into account that the defendant generally allowed private telephone calls to be made at its own expense. Although there was no regulation regarding special telephone numbers subject to a charge, there was a breach of duty if extensive, unauthorised and secret private telephone calls were to be accepted at the employer's expense.
It was recognisable to the plaintiff that, in any case, the call to a chargeable lottery hotline was not covered by the permission to make private telephone calls. The breach of duty lies in the private use of the telephone connection provided by the employer as such, because this would incur additional costs for the employer and the employee would make unauthorised use of the company's resources.
The unauthorised use could also be implied. The court assumed that the number dialled or the service called could also indicate that this call was no longer covered by the authorisation in view of the associated costs and the type of service used. This meant that a warning was not absolutely necessary.
A call to a lottery hotline differs from ordinary telephone calls, which have the purpose of conducting a conversation. Such a call should also be distinguished from other chargeable numbers, as the caller buys a chance to win with the call. Regardless of whether the call actually gets through, each call costs 0.50 euros.
This would generate income for the organiser, which would ultimately also finance the prize. In the case of a call, the employee used the employer's funds to make a profit, as in a lottery. It was recognisable that this could not be the employer's intention.
Calls were not made during working hours, but during breaks
The breach of duty did not arise from the fact that the plaintiff made the calls during working hours, as the calls were made during work breaks.
It should be noted that calling the competition "The Mysterious Noise" does not lead to damage to the defendant's reputation when the calls are traced.
Nevertheless, the breach of duty does not justify an extraordinary dismissal.
The right of termination does not recognise an absolute reason for termination. Therefore, a balancing of interests is required. This must be carried out in favour of the plaintiff in each individual case.
This was based on the fact that, despite the plaintiff's relatively short period of employment and any position of trust, in particular with regard to checking invoices, the plaintiff's breach of duty was not so serious that it would not have been reasonable for the defendant to continue to employ the plaintiff until the end of the ordinary notice period.
In the plaintiff's favour, it should be taken into account that free calls were permitted and that there were no rules regarding calls to special numbers. It was true that the plaintiff had recognised that she was not allowed to call during the competition. However, she could not be accused of wilful behaviour. Persistent behaviour could also not be assumed because the specific extent of telephone use had not been clearly specified.
Although there are differences between calling a lottery hotline and "normal" telephone calls, both are telephone calls made. The dialling of special numbers was not completely excluded. The call to the information centre was also permitted, which was not disputed by the defendant.
It was not true that persistent and deliberate action to the detriment of the plaintiff was to be assumed, because due to the unclear instruction situation there was the possibility that the plaintiff had not thought anything of it.
Negligence could only be assumed if the plaintiff assumed that she was authorised to make such calls. Although she could have enquired with the defendant, this does not speak in favour of deliberate or persistent action in the specific situation.
Intent is also not evident from the fact that the plaintiff only informed the managing director about the calls on 20 February 2015. Despite the prize money of EUR 26,000.00, it cannot be ruled out that the plaintiff did not remember the calls due to the lapse of time. The reference to the possibility of obtaining an itemised bill served as a further exclusion criterion.
The plaintiff's explanations in this regard would appear possible and therefore exclude intent. A lack of insight into injustice was also not recognisable.
It was also irrelevant whether the plaintiff had made all the calls. Even with 31 calls, taking into account the degree of fault, neither the economic consequences nor the loss of trust caused were so serious that an immediate termination of the employment relationship was justified.
Ordinary cancellation was effective, however
The aspect of the risk of repetition therefore did not constitute a circumstance that was to the detriment of the plaintiff because no clear regulation had been made.
Consequently, the defendant could reasonably be expected to continue the employment relationship at least until the end of the ordinary notice period.
However, the court changed the decision on costs of the first instance because the plaintiff had initially challenged the termination in its entirety as being without notice and in due time. Originally, she had sought a declaration that the employment relationship would continue at least until 31 March 2015. In the statement of grounds, it was stated that a reason for termination was also not apparent for the alternative ordinary termination.
At the hearing, the plaintiff then impliedly withdrew the action regarding the ordinary termination and only objected to the extraordinary termination. Consequently, she was to share in the court costs of the first instance according to the extent of the withdrawal of the action. If you need help here, please contact a Lawyer labour law.
Source: Düsseldorf Regional Labor 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, please feel free to call us at 0221 - 80187670 or send us an email at or send an email to info@mth-partner.de info@mth-partner.de
