Remuneration and compensation for a law student employed as a waitress in a restaurant

Munich Regional Labour Court rulings of 4 June 2025 and 16 April 2025 - 11 Sa 456/23

In its rulings of June 4, 2025, and April 16, 2025, the Munich Regional Labour Court had to deal with numerous employee claims that frequently occur in practice on the basis of a picture book-like set of facts. The court ruled that a law student employed as a waiter in a restaurant, who was no longer assigned to duty by his employer as a result of activities initiated by him to elect a works council, was entitled to both remuneration and default of acceptance wage claims as well as a claim for damages against the employer under Section 823 (2) German Civil Code (BGB) in conjunction with Section 20 (2) German Works Constitution Act (BetrVG) and Section 612a German Civil Code (BGB).

A. Facts of the case

The plaintiff was a law student and had been employed by the defendant, which operated a restaurant in Munich, as a service employee since October 2018. A written employment contract was not concluded between the parties. There was only a personnel questionnaire, according to which the plaintiff was employed as a "temporary employee" with the status of "student (family-insured) up to € 450" with the "main occupation: Waiter/Bar". The plaintiff worked for the defendant in various shifts. The plaintiff was scheduled to work on the basis of a duty roster that was drawn up weekly by the defendant after the plaintiff had informed the defendant on which days it was not possible to schedule him. The duty roster was sometimes changed at short notice, also in the form of a unilateral cancellation of shifts by the defendant if personnel were not required at short notice. At the start of each shift, the defendant made a handwritten note in the duty roster of the specific shift worked. However, the defendant instructed the service staff employed by it to be present to a specified extent before the start of the shift or after the end of the shift. However, such attendance times were not remunerated by the defendant. In addition, the defendant charged the service staff employed by it a so-called "glass allowance" of EUR 2.00 per working day, which it withheld from the remuneration. Communication with the employees, including with regard to rosters and scheduling, took place via a WhatsApp group.

In 2021, the plaintiff, together with two other employees of the defendant, initiated activities to elect a works council. To this end, the plaintiff and the two other employees invited employees to a works meeting at which an election committee was to be elected. Shortly after the letter of invitation to the works meeting was posted, the defendant's plant manager removed the plaintiff from the company WhatsApp group for a short time and then asked him to withdraw the initiative to elect a works council. Nevertheless, the works meeting took place on July 5, 2021. In addition to the employees of the restaurant, other persons who were not employed in the restaurant were also present, such as the wife and son of the defendant's managing director and two female partners who were responsible for payroll accounting. These persons refused to leave the works meeting. Therefore, no election committee could be elected at the works meeting. One of the two employees, who was involved in the initiative alongside the plaintiff, was dismissed by the defendant without notice on July 7, 2027. As a result, the plaintiff and the remaining other employee continued the activities alone. On August 27, 2021, the plaintiff spoke with another person about the failed election of an election committee and the possibilities of continuing. As a result, the wife of the defendant's managing director, who was present, banned this person from the premises. From this point on, the plaintiff was no longer scheduled to work.

In mid-October 2021, the managing director of the defendant informed the plaintiff that he no longer had confidence in him. On December 15, 2021, he also informed the plaintiff via WhatsApp that the current situation would prevent his employment. At the same time, however, new service and bar staff were hired and employed by the defendant. The plaintiff had offered to work for the defendant from at least October 2021. However, he was not employed.

The plaintiff was on sick leave from March 23, 2022 to April 1, 2022. On April 5, 2022, the defendant asked the plaintiff to appear at the company and perform his work, stating that it considered temporary work at the bar and in the kitchen to be of equal value and that the instruction to the plaintiff to (also) work in the kitchen in the future was, in its view, covered by its right of direction. The plaintiff then demanded that the defendant pay him his remuneration for the prescribed attendance times before the start of the shift and after the end of the shift as well as the lost remuneration for the period in which the plaintiff was not scheduled for work by the defendant for the period from October 15, 2021 to March 31, 2022.

In a letter dated April 12, 2022, the defendant terminated the employment relationship with the plaintiff without notice, or alternatively with due notice. The plaintiff filed an action for unfair dismissal against this termination with the Munich Labour Court and demanded his continued employment in the event that he prevailed. In addition, the plaintiff sought payment of remuneration, compensation for default of acceptance and damages, among other things.

The Munich Labour Court essentially only granted the application for protection against dismissal and the application for continued employment and dismissed the rest of the claim. The plaintiff appealed against this judgment to the Munich Regional Labour Court.

B. Reasons for the decision of the Munich Regional Labour Court

The Munich Regional Labour Court largely upheld the plaintiff's appeal.

I. Entitlement to remuneration for hours worked

The plaintiff is initially entitled to remuneration for the remaining hours worked by him but not yet remunerated from the period January 2019 to August 2021 on the basis of the minimum wage applicable at the time of performance in accordance with Section 611 German Civil Code (BGB). In the opinion of the Court of Appeal, the plaintiff's submission regarding the hours worked by him but not remunerated by the defendant also satisfied his burden of presentation and proof. If an employee claims remuneration for work, he must demonstrate and, if disputed, prove that he performed work or that one of the circumstances existed that regulates an obligation to pay remuneration without work (see Federal Labour Court judgment of 18.04.2012 - 5 AZR 248/11). Since the specific work to be performed is usually determined by the employer through instructions, the employee satisfies his burden of proof by stating that he was at the right place at the right time to follow the employer's work instructions. The employer must provide a substantiated response to this submission as part of a graduated burden of proof. The employer must therefore provide details of the work assigned to the employee and whether the employee complied with the instructions. If the employer does not provide any information or does not provide any substantiation, the working hours submitted by the employee are deemed to be admitted. In the opinion of the Regional Labour Court, the plaintiff in the present case had submitted in detail how the work process was presented with regard to the individual shifts at the defendant, in particular to what extent and to what extent the plaintiff's presence was necessary before the start of the shift and after the end of the shift and was even required by the defendant. In addition, the plaintiff had explained the respective days on which he had worked such hours as well as the extent of these working hours, also in detail by submitting the duty rosters together with the handwritten notes on attendance contained on them. The defendant had not substantiated this.

II. Claim for repayment of the so-called "glass money"

The plaintiff is also entitled to a claim against the defendant for repayment of the so-called "glass money" withheld from his remuneration. Even if there had been an agreement between the parties regarding the glass money, this would, in the opinion of the Regional Labour Court, contradict the principles of employee liability established by the Federal Labour Court (see Federal Labour Court judgment of 17.09.1998 - 8 AZR 175/97). According to these principles, the employee is only fully liable for damages in connection with an activity caused by the company if the employee acted with intent or gross negligence when causing the damage. In the case of only slight negligence, however, there is no liability. The defendant did not make such a differentiation when withholding the so-called "glass money" from the plaintiff's remuneration. Rather, the withholding of the "glass money" even took place irrespective of whether any damage had occurred at all. Just as in the case of the agreement of a shortfall allowance, such an agreement would only be effective if the employee had the opportunity to receive a higher remuneration if no damage occurred (see Federal Labour Court judgment of 02.12.1999 - 8 AZR 386/98). However, it is undisputed that the plaintiff did not have such an opportunity. Since the wage deductions in the amount of the so-called "glass money" were therefore unjustified, the plaintiff has a claim against the defendant for payment of the corresponding withheld amounts.

III. No claim to remuneration calculated according to the current minimum wage

However, the plaintiff has no claim against the defendant for payment of the remaining remuneration calculated according to the current minimum wage at the time of the judgment. This is because the respective wage claim in the amount of the minimum wage arises with every hour worked (see Federal Labour Court judgment of 21.12.2016 - 5 AZR 374/16). According to the case law of the Federal Labour Court, the guarantee of the statutory minimum wage is the indispensable minimum protection at pay level (see Federal Labour Court ruling of 25.04.2023 - 9 AZR 253/22). The claim to the statutory minimum wage therefore already arose when the work was performed. Furthermore, it is also not a claim for damages, as Sections 20 and 21 German Minimum Wage Act (MiLoG) are not to be regarded as protective laws within the meaning of Section 823 (2) German Civil Code (BGB). Nor does a different understanding follow from the purpose of this benefit, which is to secure livelihoods. This is because the period for which the livelihood was to be secured was already in the past in the present case. However, it is no longer possible to secure a livelihood retrospectively.

IV. Entitlement to wages for default of acceptance

The plaintiff was also entitled to a claim for default of acceptance wages for the years 2020 and (partially) 2021 pursuant to Sections 611, 615, 293, 296 German Civil Code (BGB). Since an agreement regarding a specific (maximum) number of hours could not be established in the present case (because there was no written employment contract and, in the opinion of the Court of Appeal, such an agreement did not result from the personnel questionnaire completed by the plaintiff), the question of the extent of time in which the defendant can be in default of acceptance is determined by how the plaintiff's working hours were actually practiced. Since the plaintiff was not employed by the defendant in 2020 and 2021 to the same extent as in 2019, he is entitled to a claim for default of acceptance in the amount of the difference. In the opinion of the Regional Labour Court, an offer of work performance was unnecessary pursuant to Section 296 of the German Civil Code (BGB), as flexible working hours existed in the present case. There was no agreement as to the extent to which and on which days of the week the plaintiff had to perform his work. The plaintiff had only indicated the days on which he did not wish to be scheduled for work. In all other respects, however, the work schedule was determined unilaterally by the defendant, who specified the work schedule on a weekly basis. Consequently, the responsibility for the work schedule lay solely with the defendant. If, in such a situation, the employer, contrary to the contract, does not call off the work to the extent of the working hours owed by the employee or the distribution to be determined by the employer on the basis of its right to issue instructions, according to established case law pursuant to Section 296 German Civil Code (BGB), no offer of work performance is required (see Federal Labour Court Urt. v. 26.01.2011 - 5 AZR 819/09; Regional Labour Court of Cologne judgment of 04.03.2010 - 6 Sa 117/10). The plaintiff also did not have to consider any maliciously omitted interim earnings pursuant to Section 615 sentence 2 2nd half-sentence German Civil Code (BGB). This is because the defendant did not sufficiently substantiate that there was a suitable and reasonable employment opportunity for the plaintiff for which he could have successfully applied.

V. Claim for damages

Finally, the plaintiff is entitled to claim damages from the defendant in the amount of his lost earnings. The claim arises from Section 823 (2) German Civil Code (BGB) in conjunction with Section 20 (2) German Works Constitution Act (BetrVG), but in any case, from a violation of the prohibition of measures pursuant to Section 612a German Civil Code (BGB), since the defendant demonstrably no longer assigned the plaintiff to work as a consequence of the activities initiated by him to elect a works council. However, the plaintiff's initiative constituted a permissible exercise of his rights under works constitution law, so that the defendant's conduct constituted an impermissible reprimand within the meaning of Section 612a German Civil Code (BGB). In the view of the Court of Appeal, it had been proven that the plaintiff's failure to report for work was due to his activities to elect a works council. In particular, according to the findings of the Court of Appeal, the defendant had also failed to assign the plaintiff to duty in order to prevent further activities by the plaintiff, which had indisputably continued even after the failed works meeting, by exerting corresponding pressure on the plaintiff. The reasoning of the defendant's managing director that the defendant had lost confidence in the plaintiff due to his initiative also speaks in favour of the causality of the initiative for the failure to report for duty. As a result, the plaintiff is entitled to claim compensation from the defendant for payment of the lost remuneration calculated on the basis of the minimum wage applicable at the time the service was rendered. In addition, the plaintiff is also entitled to a claim against the defendant for payment of the tips he lost, as these are a loss of profit.

C. Conclusion

Overall, these are decisions worth reading, which deal in detail with numerous employee claims that frequently occur in practice, in particular with the principles of the right to remuneration under the employment contract, the wage for default of acceptance, as well as with the question of a claim for damages due to inadmissible influencing of a works council election and due to a violation of the prohibition of measures pursuant to Section 612a German Civil Code (BGB).