Update Employment Law December 2023

Political meeting instead of further education: Summary dismissal of a works council member is fair and effective

Verden Labour Court, judgment of 19 September 2023 (case no 2 Ca 101/23)

If a member of the works council travels to a union-organized meeting with high ranking politicians instead of attending a seminar financed by the employer, and if he also bills the employer for the travel costs incurred, this conduct justifies summary dismissal of the employment contract. This was decided by the Verden Labour Court on 19 September 2023.

Merits of the case

The employer and defendant operates a logistics centre. The plaintiff was employed at this logistics centre but was elected as full-time member of the works council there. In his additional function as member of the representative body for severely disabled employees, the plaintiff registered for a seminar lasting several days entitled "The Representative Body for Severely Disabled Employees II" in Cologne with the defendant's consent. The seminar took place over 300 km away from the workplace. The defendant paid the seminar fees, covered the hotel costs and paid for a rental car and petrol costs so that the plaintiff could travel to the venue.

However, on the first day of the seminar, the plaintiff actually attended a meeting organized by the union with the Federal Minister of Labour and Social Affairs, Hubertus Heil, in Berlin without the defendant's knowledge. On the second day, the plaintiff also attended a further meeting with the Minister President of Lower Saxony, Stephan Weil, in Hanover. The plaintiff did not attend in the seminar in these two days, or only attended parts of it. Nevertheless, the plaintiff still submitted the petrol costs for the journeys to Berlin and Hanover to the defendant for reimbursement.

When the defendant learned of these incidents, it terminated the plaintiff's employment without notice on 7 February 2023 – after obtaining the approval of the works council committee.

The defendant argued that the plaintiff had seriously breached his contractual obligations by providing false information about his seminar attendance (and thus his working hours) and also by submitting the travel expenses for the trips, which were ultimately not business trips due to the lack of a business reason.

Decision of the court

The Verden Labour Court dismissed the lawsuit of the plaintiff where he claimed wrongful termination in a ruling dated 19 September 2023.

There was fair cause for the summary dismissal under section 626 para 1 of the German Civil Code.

Based on the plaintiff's own statements, it was clear that he had not attended the seminar in Cologne on the first two days of the seminar or at least had only attended the seminar temporarily.

In addition, he had charged the defendant for travelling expenses even though the participation at the political meetings in Berlin and Hanover was not warranted by his works council mandate.

The plaintiff had violated the relationship of trust with the defendant in a particularly serious manner because since he had declared working time for these journeys and then also charged the expenses incurred.

In the overall balancing of these circumstances, this behaviour justified to summarily dismiss the employee.

Practical advice

Although works council members are strongly protected against terminations – with or without notice, they are not per se non-dismissible – as is often simplistically expressed.

Works council members can only be dismissed for good cause – particularly in the event of serious breaches of contract – in order to guarantee their independence.

The judgement of the Verden Labour Court deals with just such a case of serious breaches of contract. Ultimately, the plaintiff massively deceived the defendant in several respects and thus disregarded the defendant's financial interests: On the one hand, the defendant paid for the seminar costs, at least parts of which the plaintiff never attended on his own authority. On the other hand, he claimed the travel expenses from the defendant, which he ultimately used for a private trip. Attending meetings with politicians organised by trade unions is of course perfectly fine in itself. However, this is simply a leisure activity for the works council member and not to be considered working time. The journeys there and back are therefore no business trips.

In the case of the Verden Labour Court, the employer acted in an exemplary manner with regard to the speed of the decision to dismiss. In the case of summary dismissal, it always depends on the speed: As soon as the employer becomes aware of the breach of duty, it must (in principle) give notice of termination within two weeks. Therefore, employers must not waste time. Employers can further learn from this decision that works councils are not untouchable. In severe cases, it should always be carefully checked whether dismissal is an option.

Download as PDF

Contact persons

You are currently using an outdated and no longer supported browser (Internet Explorer). To ensure the best user experience and save you from possible problems, we recommend that you use a more modern browser.