Redemption of found empty vouchers does not justify termination

An employee's intentional breach of his or her contractual duties may justify termination without notice even if the economic damage involved is minor. Conversely, not every breach of contractual duty directly directed against the financial interests of the employer is without further ado a reason for dismissal. Section 626 (1) BGB is decisive. According to this, termination without notice can only be for "good cause". The law does not recognise any "absolute grounds for termination" in this context. Rather, according to the law, whether an "important reason" exists must be assessed "taking into account all circumstances of the individual case and weighing the interests of both parties to the contract". In doing so, all aspects that come into consideration for the respective contractual relationship must be evaluated. This includes the given degree of damage to trust, the interest in the correct handling of the business instructions, the "capital of trust" acquired by the employee during the period of his unchallenged employment as well as the economic consequences of the breach of contract; an exhaustive list is not possible. Overall, the immediate termination of the employment relationship must prove to be an appropriate reaction to the breach of contract that has occurred. Under certain circumstances, a warning may be sufficient as a milder means of restoring the trust in the employee's honesty that is necessary for the continuation of the contract.

Applying these principles, the Second Senate of the Federal Labour Court - in contrast to the previous instances - upheld the action brought by the cashier of a retail shop who redeemed deposit receipts not belonging to her worth a total of 1.30 euros for her own benefit.

The plaintiff had been employed by the defendant and its legal predecessors as a cashier since April 1977. On 12 January 2008, two vouchers for empties worth 48 and 82 cents were found in her branch. The branch manager handed over the vouchers to the plaintiff to keep in the cashier's office in case a customer should still contact her. They were visible and openly accessible there. According to the findings of the lower courts, the plaintiff handed in the two receipts to the cashier colleague during a private purchase ten days later. The latter accepted them although they had not been signed off by the branch manager, contrary to what would have been required on the basis of an instruction. During the trial, the plaintiff denied that she had taken the receipts and pointed out that she might have made herself unpopular by participating in trade union activities at the end of 2007. Prior to her dismissal, she had argued that the deposit receipts could have been put in her purse by one of her daughters or a colleague. Irrespective of the works council's objection, the defendant terminated the employment relationship without notice, alternatively with notice, on the grounds of urgent suspicion.

The dismissal is invalid. The questions connected with a so-called "dismissal on suspicion" did not arise in the appeal instance because the Regional Labour Court - binding for the Senate - found that the plaintiff had actually committed the acts of which she was accused. The breach of contract was serious. It touched on the core area of the work tasks of a cashier and thus, despite the low value of the deposit receipts, objectively put a considerable strain on the relationship of trust between the parties. As a retail company, the defendant is particularly susceptible to suffering high losses in total due to a multitude of individually minor damages. On the other hand, the plaintiff's conduct in the proceedings could not be to its detriment. It did not allow any conclusions to be drawn about unreliability relevant to the contract. It exhausted itself in a possibly clumsy and contradictory defence. Ultimately, in view of the serious losses associated with a termination, the aspects to be weighed in the plaintiff's favour outweigh the disadvantages. These include, in particular, the employment over three decades without any legally relevant disturbances, through which the plaintiff acquired a high degree of trust. This trust could not be completely destroyed by the in many respects atypical and unique circumstances of the dismissal. In the context of the consideration, the comparatively minor economic damage to the defendant also had to be taken into account, so that a warning would have been appropriate and sufficient as a milder means than a dismissal in order to bring about a trouble-free course of the employment relationship in the future.

Judgment of the Federal Labour Court of 10 June 2010 - 2 AZR 541/09 -

Lower court:

Berlin-Brandenburg Regional Labour Court, Judgement of 24 February 2009 - 7 Sa 2017/08 -

 

Source: Press release of the Federal Labour Court

 

Goldberg Attorneys at Law

Attorney at Law Michael Ullrich, LL.M. (Information Law)

E-mail: info@goldberg.de

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