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BAG: Exceptional notice of dismissal for breach of trust effective

March 2017

Even if the financial loss suffered due to an employee’s breach of duty is minor, the resulting breach of trust can justify exceptional notice of dismissal.

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: A cashier lost her job over a few euros. She had managed to issue herself with deposit vouchers without having submitted empty containers for these. To his end, she passed a returnable bottle multiple times through the scanner and put the deposit in her bag. The scam was uncovered and the woman received exceptional notice of dismissal as well as, in the alternative, ordinary notice of dismissal. Her action against unfair dismissal was unsuccessful before the court of last instance. The Bundesarbeitsgericht (BAG), Germany’s Federal Labour Court, held in its ruling of September 22, 2016 that exceptional notice of dismissal had been justified (Az.: 2 AZR 848/15).

The woman’s deception came to light rather as a matter of chance. With the employer having detected a noticeably elevated stock loss, it carried out video surveillance of the checkout area in coordination with the works council. Upon examining the tapes, the cashier’s deposit fraud was discovered, she having been employed as the deputy branch manager.

Like the Landesarbeitsgericht (Regional Labour Court) before it, the BAG ruled that exceptional notice of dismissal had been justified. Manipulating the checkout process for her own enrichment was said to constitute a material breach of the employee’s duties, with this kind of breach of duty justifying exceptional notice of dismissal. The BAG stated that it did not come down to the extent of the losses incurred but rather the breach of trust resulting from the breach of duty. The Court went on to say that this kind of breach of trust was particularly significant in the case of a deputy branch manager and cashier. It held that the work in question involved the employer placing unrestricted trust in the employee.

The Court also expressly allowed the use of the concealed video surveillance footage as evidence, reasoning that the recordings were justified pursuant to the Bundesdatenschutzgesetz (BDSG) [Federal Data Protection Act]. Moreover, the recordings were said not to represent an encroachment on the employees’ general personal rights, as there had been a specific suspicion that a punishable offence or other serious transgressions at the expense of the employer had been committed and less severe measures had already been exhausted.

Having said all of that, whether exceptional notice of termination in relation to an employment contract has been issued effectively always comes down to the specificities of each individual case. Lawyers who are experienced in the field of employment law can advise on all issues pertaining to the workplace.

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