Regional Labour Court Düsseldorf, 17.01.2012, Ref.: 17 Sa 252/11
Dismissals of employment contracts can be challenged under certain conditions with an action for unfair dismissal.
This applies in particular if the Protection against Dismissal Act is applicable. Whether the Protection against Dismissal Act is applicable depends on certain conditions, which vary depending on the length of your employment:
For employees who started work before 1 January 2004, the previous legal situation applies. For the applicability of the KSchG, the:
- have been employed by the same company or organisation for more than six months without interruption (Section 1 KSchG),
- the business or company regularly employs more than five employees, not including trainees (§§ 1, 23 KSchG).
The Dismissal Protection Act only applies to employment relationships with employees who started work after 1 January 2004 if the company regularly employs more than ten employees.
If the Dismissal Protection Act is applicable, the social unlawfulness of the termination of an employment relationship can be reviewed by filing an action for protection against dismissal.
According to § 4 KSchG, the action for protection against dismissal must be filed within the period of three weeks after receipt of the notice of dismissal.
Nevertheless, the action can also be admitted retrospectively in accordance with Section 5 KSchG if the employee was prevented from filing the action within the three-week period after exercising all due diligence that could reasonably be expected under the circumstances.
The complaint must be filed with the locally competent labour court.
In the above-mentioned case, an employee had filed an action for unfair dismissal against a waste management company, which had released the employee from work due to a suspected dismissal.
Facts of the Case:
Plaintiff was employed by the defendant as a weigher at the waste ramp
The plaintiff had been working for the defendant, a waste management company, as a waste ramp manager since 1997.
The plaintiff's tasks included, among other things, the creation of so-called weighing documents.
According to the defendant, the plaintiff allegedly collected a one-off amount of EUR 14.99 from a private customer in 2010, but did not book it properly.
The plaintiff had not recognised an amount of EUR 14.99 in his activity but had retained it
The plaintiff is said not to have issued the receipt in order to keep the amount himself.
The resulting allegation of embezzlement was disputed between the parties.
Employer dismissed on suspicion of embezzlement
Due to the suspicion, the defendant terminated the employment relationship with the plaintiff without notice after the works council hearing, or alternatively extraordinarily, subject to a social expiry period.
In its judgement of 11 January 2011, the Solingen Labour Court, which was initially seized, did not follow the view of the defendant and declared the dismissal legally invalid.
Judgement of the LAG Düsseldorf
The Düsseldorf Regional Labour Court also dismissed the defendant's appeal against this ruling.
Employer had not presented sufficient facts to substantiate the dismissal
Like the Labour Court, the Regional Labour Court also assumed that the defendant had not presented sufficient facts to justify dismissal for embezzlement.
The Regional Labour Court, like the Labour Court, did not consider there to be an urgent suspicion of wrongdoing that would justify dismissal on suspicion.
Source: Düsseldorf Regional Labor Court
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