30. Jan 17

Exceptional notice of dismissal for working hours fraud

Fraud relating to one’s working hours may constitute good cause justifying exceptional notice of dismissal. Having said that, a ruling of the Landesarbeitsgericht (LAG) Hamm [Regional Labour Court of Hamm] shows that for this to happen there needs to be admissible evidence to this end.

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: An employment contract can be terminated with exceptional notice and immediate effect if there is good cause for doing so. One possible example of good cause is an employee committing fraud in relation to his working hours, e.g. by using his working hours to deal with private matters. In doing so, the employee would be in breach of his obligation to carry out his work as laid out in the employment contract.

However, a judgment of the LAG Hamm from June 17, 2016 demonstrates that there needs to be admissible evidence in the case of fraud pertaining to working hours (Az.: 16 Sa 1711/15). In that case, the employer had issued an employee with exceptional notice of dismissal and, in the alternative, ordinary notice of dismissal. The former claimed that the latter had made use of his work computer during working hours for the purposes of programming a computer game and supporting his father’s business. The employer find out about this after using what is termed a “keylogger”, which records all key and mouse movements, and produces regular screenshots.

Following his dismissal, the employee resisted his employer’s decision. According to the former’s statements, he used the work computer for private purposes predominantly during breaks and only rarely during working hours. However, the keylogger’s records painted a different picture. Moreover, the LAG Hamm held that an employee who makes private use of a work computer during his working hours is as a matter of principle in breach of his obligation to carry out his work as laid out in the employment contract, with this breach being all the more severe the more the employee violates his contractual duties in terms of time and content. The Court concluded that exceptional notice of dismissal for good cause would then be entirely justified.

That being said, it went on to say that the keylogger’s records were not admissible as evidence, as the employer was thus said to have violated the employee’s right to data protection because using this software meant that highly sensitive personal data such as passwords, PIN numbers etc. was recorded as well. In weighing up the relevant interests, the Court ruled that the fundamental right to data protection was to be accorded more significance than the preservation of evidence.

Whether exceptional notice of dismissal is effective or not is always a decision that is made on a case-by-case basis. Lawyers who are experienced in the field of employment law can advise employers on all matters pertaining to dismissals as well as in relation to other issues.

For more informations:

https://www.grprainer.com/en/legal-advice/employment-law.html

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