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BAG: Threats made by employee can justify dismissal with immediate effect

May 2018

Employers do not have to accept threats made by employees. These can constitute good cause justifying extraordinary notice of dismissal with immediate effect, as demonstrated by a ruling of the Bundesarbeitsgericht (BAG), Germany’s Federal Labour Court.

An employer can issue extraordinary notice terminating an employment contract with immediate effect if there is good cause rendering it unreasonable to continue the employment relationship. We at the commercial law firm GRP Rainer Rechtsanwälte note that one such example of good cause is a serious threat made by an employee. In its judgment of June 29, 2017, the Bundesarbeitsgericht found in this regard that a serious and freely made threat constitutes good cause justifying extraordinary notice of dismissal if the employee was trying to exert pressure on his or her employer in order to advance his or her own interests (Az.: 2 AZR 47/16).

In the instant case, the worker in question was employed as a road mender for one of Germany’s federal states. After falling ill multiple times and receiving in-patient psychosomatic treatment, he was laid off for being unfit to work as a road mender and ultimately treated in the same manner as a severely disabled person. During the course of the company’s reintegration program, the employee made statements that were perceived by the other participants in the discussion as threats to commit suicide or go on a shooting spree. In addition, the employee did not rule out the possibility of more sick leave, and he failed to distance himself from these remarks throughout the rest of the discussion. The employer subsequently issued the man with exceptional notice of dismissal with immediate effect.

His action for wrongful dismissal was unsuccessful. The BAG held that merely announcing future bouts of illness may be enough to justify dismissal with immediate effect if this indicates a readiness on the part of the employee to abuse his rights. The Court went on to say that the threats to commit suicide or go on a shooting spree could also justify dismissal with immediate effect, as this puts enormous pressure on the employer. The same was said to be true if the aim of the threats was to advance the employee’s own interests. The BAG noted that this kind of intention could even heighten the significance of the threat.

Whether in the final analysis the threats were made in earnest now needs to be re-examined by the Landesarbeitsgericht, i.e. the regional labour court. A threat was said to be serious if it is likely that a person with normal sensitivities would perceive it as such. The BAG ruled that whether the person who made the threats is able to or wants to make good on his statements is irrelevant.

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