suspected dismissal -
extraordinary right of termination for offenses of the worker paid by the employer
The case "Emmely" has a lot of attention both in the press, as provided in the policy. There was talk of a "barbaric ruling of anti-social quality" [1] .
Often, however, the Protection of the employer in terms of loss of confidence in the forgotten workers. Especially in the area of asset and property crimes that are charged to the employer, this may also not proven misconduct of the employee because of a broken trust with an interest in being able to terminate the employment relationship.
At the termination of suspicion, however, very strict requirements must be made to avoid the risk that they take an innocent man.
The suspicion must be based on specific circumstances and also urgently be. In particular, a circumstantial based high probability exist that the employee has committed the infringement.
case dismissals in relation to the suspicion of crime, the employer is often located from ending the employment relationship as quickly as possible. why is always the question of what type of termination - must be ordinary or extraordinary, or under what conditions this is acceptable.
have the labor courts to decide, therefore, whether in addition to meeting the conditions described immediately, the presumptive termination good cause as defined in § 626 I BGB, which leads to termination of employment.
termination notice
Just as the proper notice has made at the extraordinary termination by a termination statement for the their effectiveness in writing in accordance. § 623 BGB requires. Only at the request of the employee, the reason for termination in accordance. § 626 II BGB S.3 are reported. An exception true gem. § 22 III Vocational Training Act as part of a training relationship [2] . The employer is therefore not required to already in the termination letter be required to state the termination.
compliance with the two-week termination notice period under § 626 II BGB
the purposes of this standard can only be an extraordinary notice within two weeks declared effective. The notice must, therefore, the employee be received within two weeks from the knowledge of the dismissal.
The limitation period of § 626 II BGB applies to the termination of suspicion. It begins in accordance with this case. § 626 II BGB p.2 at the time in which claimants are known to a termination of his investigation of the facts to justify his suspicions, and to him the necessary balance of interests and his decision to dismiss ermo ; adjusted.
absent for criminal acts on the certain knowledge can the employer also go for the continuation of criminal proceedings and not to a randomly selected later cancel such charges if applicable. [3]
The employer can also wait for the outcome of criminal proceedings and terminate extraordinarily for proven fact. He can also do self-investigation and stakeholders anhören.Der beginning of the termination notice period of § 626 II BGB in cases of suspected notice is suspended as long as the employer to clarify the facts performs at its sole discretion deems necessary measures with due haste. [4] Since the employer make reasonable efforts to clarify the facts must take [5] can not be generally recognized facts of the dismissal without a hearing of the worker sufficiently complete.
The hearing on the employee to inhibit the start of a two-week limitation period must be within a short period of not longer regularly than 1 week after the completion of the investigation may be the employer [6]
However, if the term set forth. § 626 II BGB failed and the employer wants to terminate already under suspicion, he must be to hold out that he has set the appearance of the workers in spite of the incident until the expiry of the notice period to employ or do. OF TIME at the employer applies the so-may be important in the sense of § 626 BGB I recognized - Basic not as important in accordance with § 626 I BGB, the employer may terminate the employment relationship only properly in compliance with the applicable notice period. A termination would be ineffective. [7]
good cause § 626 I BGB
The suspicion heavier, but still not one hundred percent of proven misconduct, the relationship of trust between employer and employee destructive Ren and thus the continuation of employment Report this do if the suspicion is justified by the facts objectively (urgent suspicion).
Mere suspicion is not sufficient therefore. As stated above, these facts are previously determined and identified.
Furthermore, the employer must consider that the hearing before termination of the employee is mandatory. [8] This is to ensure that the employer is using all the essential ways to get the permission of his suspicion and the resultant unacceptability, the employee to continue to occupy, to be clear. An exception can only be the case if the employee is not a priori be prepared to comment on sufficient grounds to suspect. [9]
Under established case law of the Federal Labour Court of workers paid by the employer regularly committed property crimes such as to justify an extraordinary termination for good reason. A worker who is related to his job performance-related criminal acts committed against the assets of his employer, that his employment contract considerate duty seriously injured and abused the trust placed in him in significant ways. [10]
This also applies to things that only have a low value.
the so-called "bee sting case," the court ruled for the first time that even the unauthorized diversion of low-value things regardless of the actual balance in individual cases principle an important cause for immediate termination can represent . [11] The employee has to take into account the legitimate interests of the employer's obligation. A deliberate interference with the legal interests of the employer violated the duty of loyalty. At the level of damage or the value it does not matter. [12] not the property of the employer may be subject to disposition power of the worker. If you were to ask just in terms of assets and property crimes a materiality threshold for extraordinary reasons, this would also have a wrong signal to other employees: The employee could then allowed to proceed from the inconsequence minor offenses.
warning unnecessary?
basically a behavioral termination due to a contractual obligation has regularly preceded by a warning. [13]
purpose of the notice is not only the mere sanction for the misconduct of the employee. Rather, by a preventive effect produced to the effect that the termination of avoiding the risk of further works against dereliction of duty. Is contrary to the workers once again against his contractual obligations, may be expected to regularly that it will come in the future to further contract interference.
The warning is then not necessary if there is a serious breach of duty. [14]
For the question of whether a warning is necessary or not is to decide what type of activity Workers in the firm is responsible, or, what crimes suspect in a particular case.
Whether ultimately the employer in court success with its termination depends not only on whether in principle there are serious reasons, but also by the balance of interests in the individual case.
At this level, the Court considered, among other things, the length of service, age of the employee, the position of the employee in the enterprise and the extent of the damage suffered by the employer.
compares with the employer's interest in the reliability trust the employee to be allowed, especially when the employee is at work with assets in the employer's name. In addition, the employer should be given just a reaction in terms of preventive option for financial losses and property crimes must.
reaction ability of the worker
The employee is granted the opportunity to put up against the dismissal in the form of job protection for military action.
It is important however that a period of 3 weeks gem. § § 13 I p.2, 4 p. 1, 7 Consumer Protection Act of receipt of the notice must be maintained. This is in addition to ordinary for the extraordinary cancellation.
If dis termination regarded as invalid, the employee is also entitled to continued employment and compensation. The latter claim, the worker must of course also for the period between the end of the notice and the establishment of invalidity of the dismissal by the court.
Dr. jur. Marc Herzog, LL.M.
Dipl.-Verww. (FH) Jürgen Liebhart, lawyer, LG Traunstein
[1] CIA - 2/26/2009 v.
[2] Palandt Commentary on BGB 69th Edition 2010 § 623 Rn. 32
[3] in BAG NJW 2008, 1097
[4] BAG Judgement of 12/05/2002 Az: 2 AZR 478/01
[5] Palandt Commentary on BGB 69th Edition 2010 § 626 Rn.26
[6] BAG in NZA 2006, 1211
[7] Palandt comment on the BGB 69th Edition 2010 § 626 Rn. 22.23
[8] BAG in NZA 1996, 81ff
[9] in BAG NJW 1987, 2540ff.
[10] BAG in DB 2008, 1633ff.
[11] BAG in NZA 1985, 91ff
[12] in BAG NJW 2004, 1551ff.
[13] BAG in NZA 2006, 980ff
[14] Palandt Commentary on BGB 69th Edition 2010 § 626 Rn. 18
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lawyer Maria Upper Meier
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