04-30-2021  | Update Employment Law May 2021

Extraordinary termination due to theft of a liter of disinfectant




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LAG Düsseldorf 14.01.2021 - 5 Sa 483/20

It doesn't matter whether it's a piece of bee sting cake, the cashing in of two found deposit receipts with a total value of 1.30 euros by a cashier or the removal of six Maultaschen from the kitchen: In the past, labor courts have had to rule on a large number of extraordinary dismissals that were issued because employees stole items of low value.

It is generally recognized in case law that the theft of low-value items can also justify extraordinary termination. A breach of duty justifying extraordinary termination is not ruled out simply because of the insignificance of the pecuniary loss, because an employee who intentionally and unlawfully violates the integrity of his employer's property and assets demonstrates behavior that is capable of calling into question the reasonableness of his continued employment. The shaking of the basis of trust necessary for the contractual relationship triggered by such conduct occurs irrespective of what concrete economic damage is associated with it.

In a second step, it must then be examined whether the employer can reasonably be expected to continue employing the employee despite the existence of a significant breach of duty, at least until the expiry of the notice period. In an overall assessment, the employer's interest in the immediate termination of the employment relationship must be weighed against the employee's interest in its continuation. The individual case must be assessed in compliance with the principle of proportionality. The circumstances on the basis of which it is to be be judged whether the continued employment is reasonable for the employer or not cannot be determined conclusively. The weight and the effects of a breach of contractual duty - for example with regard to the extent of a loss of confidence caused by it and its economic consequences -, the degree of fault of the employee, a possible risk of repetition as well as the duration of the employment relationship and its trouble-free course are to be taken into account regularly. Within the framework of proportionality, it must also be examined whether a warning would have been sufficient.

The exceptional situation caused by the pandemic, which affected the whole of Germany from March 2020, and the associated scarcity of certain goods were also of particular importance in the decision of the Düsseldorf Regional Labor Court in weighing up the interests.

Facts

Since 2004, the plaintiff had been employed by a parcel delivery company, the defendant, as a loader, unloader and washer for the vehicles. The washing of the wagons was carried out in night shifts with six to seven colleagues, whereby the plaintiff parked his wagon near the workplace. During the random exit check on March 23, 2020, at about 07:50 a.m., the plant security found an unopened plastic bottle containing one liter of disinfectant and a towel roll in the plaintiff's trunk. The value of the disinfectant at that time was approximately 40.00 euros. At that time, it happened again and again at the defendant that disinfectant was stolen from the washrooms. For this reason, notices had already been posted in the sanitary area indicating that the taking of disinfectant would result in termination without notice and a report to the police.

On March 24, 2020, the personnel committee of the works council approved the intended termination without notice. This was announced to the plaintiff on March 25, 2020.

The plaintiff filed a complaint against this dismissal. He had gone to his vehicle every hour during work to disinfect and dry his hands. He had wanted to use the product for himself and possibly his colleagues, especially since it was not always available in the washrooms. On the way out, he had not thought about the things in the trunk. He did not need to steal any disinfectant because his wife worked in nursing and the family was adequately supplied through her.

The employer alleged that the plaintiff told the plant security guard that he was allowed to take the disinfectant with him to disinfect his hands on the way. 

Decision of the LAG Düsseldorf

The Düsseldorf Higher Labor Court (LAG) confirmed the validity of the dismissal and thus upheld the employer's case. The plaintiff's statements were not believable. The court assumed that the plaintiff had acquired the disinfectant in order to use it himself. If he had wanted to use it during the shift, it would have been obvious to put the disinfectant on the material trolley at the workplace, especially since only six to seven colleagues worked at night. Moreover, it was not comprehensible that he also wanted to use the disinfectant for his colleagues, because he had neither told them where he kept the disinfectant nor had he given them the car key so that they could use it. Finally, the bottle that was found had not been opened. Also, in view of the long period of employment, no prior warning was required. The plaintiff had stolen a not insignificant amount of disinfectant at a time of the pandemic, when disinfectants were in short supply, and in the knowledge that the defendant also had to deal with supply shortages. At the same time, he had accepted that his colleagues would be left empty-handed. In view of these circumstances, it must have been clear to him that by stealing one liter of disinfectant he was endangering the continuation of his employment relationship. In view of these circumstances, the plaintiff's interests were also weighed against his.

Practice note

Even if disinfectant was "precious" for many people at the time of the crime, the decision of the Düsseldorf Higher Labor Court confirms previous case law, according to which the theft of low-value items can also entitle a person to terminate a contract without notice.

In weighing up the interests, the particularities of the pandemic situation and the initially prevailing nationwide shortage of disinfectants had to be taken into account in particular. Employers also experienced bottlenecks in the procurement of disinfectants in the meantime. However, since the employer has a special duty of care towards its employees during the pandemic and must protect them, for example, by providing disinfectants or masks, the fact that the plaintiff acted with such selfish motivation was taken into account to its detriment.

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