13. Jan 17

BAG: Dismissal with immediate effect for drug use justified

A professional driver taking drugs may justify exceptional notice of dismissal with immediate effect. That was the verdict of the Bundesarbeitsgericht (BAG), Germany’s Federal Labour Court, in its ruling of October 20, 2016 (Az.: 6 AZR 471/15).

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: Exceptional notice of dismissal with immediate effect can be issued if there is good cause for doing so. It is possible to issue effective notice dismissal with immediate effect if a professional driver takes drugs. It is irrelevant whether the driver takes the drugs in his free time or during working hours. That was the verdict of the Bundesarbeitsgericht in a recent ruling.

The BAG had to rule on an appeal brought by an employer that had issued a truck driver with exceptional notice of dismissal with immediate effect on account of drug use. The driver had taken the drug crystal meth, which contains amphetamine or methamphetamine among other things, in his free time on a Saturday. On the following Monday, he was once again sitting at the wheel of his truck. His drug use was then detected in the course of a police check. Upon learning of this, the employer terminated the employment relationship with immediate effect.

The driver subsequently took legal action against his dismissal, arguing that there had been no indications he was actually unfit to drive. While the action was successful before the courts of lower instance, the BAG quashed these judgments and ruled that dismissal with immediate effect had been justified. It held that the regional labour court in weighing up the relevant interests had not sufficiently appreciated the dangers in relation to the driver’s work as a professional driver resulting from the consumption of amphetamine and methamphetamine. The Court went on to say that it did not make a difference whether the man had in fact been unfit to drive on his journeys after taking the drug and whether this posed a greater risk to road safety, as a professional driver is not allowed to put his fitness to drive at risk by taking drugs.

Whether notice of exceptional dismissal is effective is always decided on a case-by-case basis, whereby the labour courts have to take into account the interests of both the employer and the employee. Exceptional notice of dismissal will only be effective if the employer’s interests in ending the employment relationship are deemed to outweigh the employee’s interests. That is why notices of exceptional dismissal should always be carefully prepared. Lawyers who are experienced in the field of employment law can advise on issues pertaining to dismissals as well as in relation to other matters concerning the workplace.

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