29. Oct 15

LAG Köln: One insult does not justify dismissal on grounds of conduct

The Landesarbeitsgericht Köln (Regional Labour Court of Cologne) has ruled that insulting one’s superior on one occasion does not by itself justify termination of an employment contract (Az.: 11 Sa 905/13).

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London - www.grprainer.com/en conclude: Employment contracts can be terminated by employers for various reasons. Employment law makes provisions, among other things, for dismissal on grounds of conduct. However, this is generally only possible if a written warning has previously been issued. Not every incidence of misconduct by an employee justifies dismissal on grounds of conduct. For instance, insulting one’s superior once in the course of a confidential discussion does not represent sufficient grounds for dismissal. That was the ruling of the Landesarbeitsgericht (LAG) Köln (Az.: 11 Sa 905/13).

In the case in question, an employee of a company was suffering from health problems that he attributed to the working conditions at his test stand. He was continuously signed off from work due to sickness from October 2012. In February 2013, a meeting was held to discuss the employee’s reintegration in which he insisted on being transferred to another team. During the course of the meeting, he insulted his superior who was not in attendance, but ultimately agreed to be reintegrated into his former team. However, the company gave him notice of dismissal, claiming that the employee insulted his superior in a slanderous manner. Despite this, the employee’s action against unfair dismissal was successful.

The LAG Köln held that the insult was a one-time incident and was made in the context of a confidential discussion. It went on to state that for reasons of proportionality a written warning rather than dismissal would have been an appropriate reaction on the part of the employer; grounds for dismissal based on conduct include, in particular, a culpable and objectionable breach of duty in connection with the employment relationship that is illegal or in violation of contract. The LAG ruled that crude insults directed at the employer, its agent and representatives or colleagues constitute a serious infringement on the part of the employee of his contractual duty to be considerate and are themselves capable of justifying extraordinary dismissal without notice. Having said that, the Court also stated that each case needs to be evaluated on its own merits, and that the critical factor is not the sanction but the prognosis. Accordingly, dismissal on grounds of conduct is only justified if no further interference to the performance of the employment contract is anticipated going forward. The Court stated that this did not apply to the present case.

In cases involving dismissals, written warnings and other matters relating to employment law, qualified lawyers can be of assistance.

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