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LAG Düsseldorf: Dismissal with immediate effect valid in response to threat

July 2017 - Employment . Legal Developments by GRP Rainer LLP.

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Anyone who seriously threatens their employer or superior should expect to be dismissed with immediate effect. This was confirmed by a ruling of the Landesarbeitsgericht (LAG) Düsseldorf [Regional Labour Court of Düsseldorf] from June 8, 2017 (Az.: 11 Sa 823/16).

Issuing exceptional notice of an employment relationship’s termination with immediate effect requires that there be good cause for doing so and that it is no longer reasonable to expect the employer to continue the employment relationship. Good cause generally entails a serious breach of duty on the part of the employee. Refusing to perform the work that is owed pursuant to the employment contract may, for instance, constitute a breach of duty of this kind. We at the commercial law firm GRP Rainer Rechtsanwälte note that conduct vis-à-vis colleagues and superiors can also justify dismissal with immediate effect.

In the case that came before the LAG Düsseldorf, the employee was accused of extreme misconduct. He was said to have threatened one of his superiors on the telephone with the words “ich stech Dich ab”, essentially threatening to stab him to death. Shortly thereafter, he received notice of dismissal with immediate effect. His action for wrongful dismissal was unsuccessful. Like the Arbeitsgericht Düsseldorf (Labour Court of Düsseldorf) before it, the Landesarbeitsgericht Düsseldorf dismissed the action.

The threat on the telephone was apparently preceded by an ongoing conflict between the employee and his superior which had been festering for some time. The trigger seemed to have been upcoming elections for the staff council. The employee had produced election posters for his free list using the company’s photocopiers, with his superior subsequently pointing out that he ought to reimburse the costs. The employee responded to this request with a criminal charge for coercion. However, he himself was ultimately convicted of fraud.

A short while later, there was the threatening phone call and dismissal with immediate effect. The LAG ruled that the latter had been issued effectively and followed the Arbeitsgericht’s line of argument, according to which it had been clearly demonstrated that the caller was the fired employee. The Court went on to say that seriously threatening a superior had resulted in it no longer being reasonable to expect the employer to continue the employment relationship. Due to the severity of the breach of duty in question, a prior formal warning was said to have been unnecessary.

Notwithstanding this, the validity of an exceptional notice of dismissal is always an ad hoc decision. That is why employers ought to carefully assess whether there is good cause justifying dismissal. Lawyers who are experienced in the field of employment law can advise employers.

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