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LAG Schleswig-Holstein – Dismissal with immediate effect for causing serious offence justified

June 2017

Anyone who causes serious offence to his employer or a colleague should anticipate the possibility of being dismissed with immediate effect, as demonstrated by a ruling of the Landesarbeitsgericht (LAG) Schleswig-Holstein [Regional Labour Court of Schleswig-Holstein] from January 24, 2017 (Az.: 3 Sa 244/16).

There needs to be good cause justifying exceptional notice of an employment relationship’s termination with immediate effect. Seriously offending one’s superiors or colleagues can constitute good cause. This is something that a 62-year-old craftsman who had worked at a family business for more than 23 years had to learn.

His many years of employment at the company did not give him carte blanche to do as he pleased. He first of all managed to get himself into an argument with the father of the managing directors and former boss, and seriously offended one of the managing directors the next morning. That evening, the managing directors dismissed him from work for three days.

The period of reflection did not do any good. The employee would not listen to reason and refused to apologize. He subsequently received notice of both exceptional and, in the alternative, ordinary dismissal. Furthermore, nothing came of the 62-year-old’s action for wrongful dismissal. His argument that his statements were covered by freedom of expression and that he had acted in the heat of the moment after having been provoked beforehand did not convince the Landesarbeitsgericht Schleswig-Holstein.

The LAG held that causing serious offence is not covered by the right to freedom of expression. Moreover, the Court took the view that the behaviour of the managing director and his father did not amount to provocation. That being said, what carried particular weight with the LAG was that the insults had not in fact been dished out in the heat of the moment; the conflict with the father and the dispute with the managing director were separated by 16 hours. The Court ruled that one could not speak of an impulsive act given such a long interval. It went on to say that a prior formal warning had not been necessary, as the plaintiff had refused to apologize and later failed to acknowledge that his actions had been wrong. As such, it was unreasonable to expect the employer as a small family business to continue the employment relationship, even until the end of the notice period.

Notwithstanding this, GRP Rainer Rechtsanwälte notes that whether exceptional notice of dismissal has been issued effectively is always a decision that is made on a case-by-case basis and requires careful consideration and weighing up of the parties’ respective interests. Lawyers who are experienced in the field of employment law can advise employers on matters pertaining to dismissal as well as in relation to other legal issues.

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