27. Sep 17

Immediate dismissal in case involving permitted second job invalid without prior formal warning

Before an employer issues notice of dismissal with immediate effect, it ought to examine whether a prior formal warning is necessary. Failure to do so can prove to be a costly mistake, as demonstrated by a ruling of the Landesarbeitsgericht (LAG) Düsseldorf [Regional Labour Court of Düsseldorf].

It is possible to issue exceptional notice of dismissal with immediate effect if there is good cause for doing so. That being said, we at the commercial law firm GRP Rainer Rechtsanwälte note that an employer should always check whether it has recourse to less severe measures, such as a formal warning, beforehand, because a court declaring notice of immediate dismissal invalid can prove to be a costly affair for the employer. This much is clear from a recent ruling of the Landesarbeitsgericht Düsseldorf from June 21, 2017 (Az.: 4 Sa 869/16).

In the instant case, a managing director was issued notice of both immediate and, in the alternative, ordinary dismissal by her employer. According to the employment contract, the employee was allowed to have a second job as well as release publications and carry out presentations subject to her employer’s approval. The employer issued notice of dismissal, among other reasons, because the employee was said to have employed other employees of her employer pursuant to her second job.

The managing director’s action for wrongful dismissal was successful. The LAG Düsseldorf held that the notice of dismissal was invalid. In justifying its decision, the LAG ruled that the employer was not able to dispel the notion that she had been permitted to make use of other employees in connection with her second job. Moreover, the plaintiff was said to have carried out her work in an open and transparent manner. The second job concerned job-specific topics that were also either part of or could have been part of her work as managing director. The LAG went on to say that because the employer had consented to the second job it needed to have issued a formal warning before issuing notice of dismissal, even if the employee had drawn on the company’s resources on a large scale.

Since notice of dismissal with immediate effect was found to be invalid, the Court concluded that the plaintiff was entitled to compensation for wages not paid, with this amounting to just under 127,000 euros for nine months.

Notwithstanding this, whether exceptional notice of dismissal is valid is always a decision that is made on a case-by-case basis and requires a precise weighing up of the parties’ respective interests. Lawyers who are experienced in the field of employment law can advise employers on all matters pertaining to dismissal as well as in relation to other legal issues.

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