An employee's intentional breach of contractual obligations may justify immediate termination, even if the associated financial damage is minor. Conversely, not every breach of contract directly impacting the employer's financial interests automatically constitutes grounds for termination. The decisive factor is Section 626 (1) of the German Civil Code (BGB). Accordingly, extraordinary termination can only occur for "good cause." The law does not recognize "absolute grounds for termination" in this context. Rather, the existence of "good cause" must be assessed according to the law, "considering all circumstances of the individual case and weighing the interests of both contracting parties." This requires evaluating all relevant aspects of the specific contractual relationship. These include the degree of damage to trust, the importance of adhering to business instructions, the "trust capital" accumulated by the employee during their unblemished employment, and the economic consequences of the contractual breach; an exhaustive list is not feasible. Ultimately, the immediate dissolution of the employment relationship must be an appropriate response to the contractual disruption. In some cases, a warning may suffice as a less severe measure to restore the trust in the employee's integrity, which is essential for the continuation of the contract.
Applying these principles, the Second Senate of the Federal Labour Court – contrary to the decisions of the lower instances – ruled in favor of the plaintiff, a retail store cashier who had redeemed deposit slips, not belonging to her, with a total value of 1.30 Euros for her own benefit.
The plaintiff had been employed by the defendant and its legal predecessors as a saleswoman with cashier duties since April 1977. On January 12, 2008, two empty bottle deposit slips, valued at 48 and 82 cents, were found in her branch. The branch manager gave these slips to the plaintiff for safekeeping in the cashier's office, in case a customer came forward to claim them. They were visibly and openly accessible there. According to the findings of the lower courts, the plaintiff submitted both slips to a cashier colleague during a private purchase ten days later. The colleague accepted them, despite the fact that they had not been signed off by the branch manager, as would have been required by internal instructions. In court, the plaintiff denied taking the slips, suggesting she might have become unpopular due to her participation in union activities at the end of 2007. Prior to the termination, she had explained that the deposit slips might have been placed in her wallet by one of her daughters or a colleague. The defendant terminated the employment relationship without notice, citing urgent suspicion of an offense, or alternatively with due notice, notwithstanding the works council's objection.
The termination is invalid. The issues related to a so-called "suspicion-based termination" were not relevant at the appellate instance because the Regional Labour Court – a finding binding on the Senate – had established that the plaintiff had indeed committed the actions she was accused of. The breach of contract is serious. It affected the core duties of a cashier and thus, despite the low value of the deposit slips, objectively and significantly strained the trust relationship between the parties. As a retail company, the defendant is particularly vulnerable to incurring substantial overall losses from numerous individually minor damages. However, the plaintiff's conduct during the proceedings could not be held against her. It does not allow for conclusions about contractually relevant unreliability. It merely constituted a potentially clumsy and contradictory defense. Ultimately, given the severe repercussions associated with termination, the factors to be considered in favor of the plaintiff outweigh the others. This includes, in particular, her employment for over three decades without any legally relevant disruptions, during which the plaintiff earned a high degree of trust. This trust could not be entirely eroded by the in many respects atypical and singular circumstances leading to the termination. Within the framework of the balancing of interests, the comparatively minor financial damage to the defendant also had to be considered, suggesting that a warning would have been an appropriate and sufficient milder measure compared to termination, to ensure a future undisturbed continuation of the employment relationship.
Judgment of the Federal Labour Court of June 10, 2010 – 2 AZR 541/09 –
Previous Instance:
Regional Labour Court Berlin-Brandenburg, Judgment of February 24, 2009 – 7 Sa 2017/08 –
Source: Press release of the Federal Labor Court
Goldberg Rechtsanwälte
Attorney Michael Ullrich, LL.M. (Information Law)
Email: info@goldberg.de
