18. Jan 16

Arbeitsgericht Berlin: Effective termination often preceded by final warning

In many cases, it is necessary for an employer to issue the employee in question with a final warning before the former can effectively give notice of dismissal. In the absence of a formal warning, the dismissal may be invalid.

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London - www.grprainer.com/en conclude: Employment law provides that employers can announce termination without notice for good cause. One possible example of good cause is a breach of the relationship of trust, with the result that it would no longer be reasonable for the employer to have to continue employing the worker in question. In many instances, it is also necessary to issue a written final warning before giving notice of dismissal, as confirmed by a judgment of the Arbeitsgericht Berlin (Labour Court of Berlin) (Az.: 28 Ca 4045/14).

Employees frequently use their work computers to privately surf the Web. Many employers tolerate this as long as it remains within reasonable limits. Having said that, it is possible for private surfing to assume proportions that are no longer acceptable from the perspective of the employer. However, in response to this, the employer must first issue a formal warning before it can effectively terminate the employment contract. This may even apply in cases where private surfing is explicitly forbidden at the workplace.

In the present case before the AG Berlin, an employee had spent between one to two hours daily privately surfing online during working hours. Upon noticing this, the company dismissed the employee without notice, stating that the relationship of trust had been destroyed. The employee successfully challenged this. The AG Berlin held that even infringements of a written prohibition do not automatically justify the employer terminating the employment relationship with immediate effect without a prior written warning. The AG Berlin took the view that the employer ought to have first issued a formal warning. The Court went on to say that it would only have been potentially appropriate to resort to termination if even after this final warning the employee had failed to change her behaviour and behaved in this manner again.

As this case illustrates, it can prove difficult to terminate an employment contract. Lawyers who are competent in the field of employment law can advise on drafting employment contracts, termination, severance payments as well as other issues relating to employment law.

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