27. Apr 16

Dismissal without notice after fiddling working hours

If an employee fiddles his working hours, this may entitle his employer to terminate the employment contract without notice. That was the ruling reached by the Landesarbeitsgericht Mainz (Regional Labour Court of Mainz) (Az.: 8 Sa 363/14).

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: It is quite common in many firms for the employees to record their own working hours using the company’s time recording system. If in the process they include hours which they did not in fact work, the employer is then able to terminate the employment contract without notice. Employment law stipulates that employers can issue exceptional notice of termination if they have good cause to do so.

The Landesarbeitsgericht Mainz (LArbG Mainz) recently had to grapple with one such case. An employee had fudged her working hours when entering them into the electronic work calendar by also recording her private appointments and designating them as such. This led to her shenanigans being discovered by her employer, which subsequently dismissed her without notice. In response to this, the employee filed an action for wrongful dismissal, arguing that the employer was not entitled to inspect private entries in the work calendar.

The action was rejected at first instance. The dismissal was said to be effective. The Court stated that because the employee had been forbidden from making private use of the work calendar, the employer was allowed to examine the private appointments as well. The plaintiff was also unsuccessful on appeal. The LArbG considered the dismissal without notice to be justified. It went on to say that the working hours had been knowingly wrongly documented and that this constituted a severe abuse of trust and thus serious grounds justifying dismissal with immediate effect.

The LArbG came to a different assessment of the employer’s inspection of the private appointments. The Court held that one could not proceed on the assumption of there being two different events calendars, particularly as work-related appointments frequently need to be coordinated with private appointments. Due to the fact that there was a reasonable suspicion that working hours had been incorrectly recorded, it ruled that the employer had been allowed to examine the private appointments as well; however, this ought to have been done in the presence of the employee. Having said that, this was said to ultimately have no bearing on the effectiveness of the dismissal.

Effectively terminating an employment contract can potentially prove to be difficult. Lawyers who are competent in the field of employment law can advise on preparing employment contracts, termination notices, severance packages as well as with respect to other issues pertaining to employment law.

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