Update Employment Law September 2022

(Termination without notice) in the event of unauthorized private use of a company vehicle

LAG Mecklenburg-Western Pomerania Judgment of June 21, 2022, 5 Sa 245/21

An extraordinary termination without notice due to an impermissible private use of a company vehicle does not necessarily require a prior warning if the private use was always prohibited and if the employer has not permitted the short-term private use in the past, not even as an exception.


The parties argue about the validity of an extraordinary termination due to unauthorized private use of a company vehicle.
The plaintiff has been employed in the pick-up and delivery service for approximately nine years with his employer, a service provider for various transport and passenger transportation. In this position he reports directly to the fleet manager. 
Whether there was a general ban on the private use of the employer's company vehicles in the past is in dispute between the parties. In any case, however, the employer's fleet manager had permitted the plaintiff the private use of a van for the relocation of his mother-in-law in the past.  

In May 2021, the plaintiff then again used the company van for private purposes, driving a distance of ten kilometers with the vehicle. He had previously taken the keys from a company hall. The fleet manager was off duty that day. After the trip, the plaintiff parked the van on company grounds again without refueling it. Three days later, it was not possible to start the van and it had to be repaired. After the employer became aware of the unauthorized private use of his vehicle, he terminated the employment relationship extraordinarily and, alternatively, ordinarily.

The Stralsund Labor Court approved the complaint against the dismissal. Both the ordinary and the extraordinary termination were invalid. Although the plaintiff had violated his contractual obligations by using the company van without permission, this was not such a serious breach of duty that a prior warning was not necessary. A warning would have been sufficient to prevent future misconduct.


The defendant's appeal was unsuccessful. 

The Mecklenburg-Western Pomerania Regional Labor Court agreed with the statements of the Labor Court. A valid termination for conduct reasons due to unauthorized private use of a company vehicle requires a prior warning if the employer had previously tolerated such private use in individual cases without objection (LAG Köln November 2, 2009, 5 Sa 625/09).
It is true that the plaintiff violated his duty to show consideration for the rights of the defendant by using the van for private purposes without first obtaining the consent of a superior. Nevertheless, this breach of duty does not weigh so heavily that even a one-time acceptance by the defendant is unreasonable according to objective standards and thus obviously excluded - also recognizable for the plaintiff.

A warning was previously necessary and also sufficient in order to insure future contractual compliance on the part of the plaintiff. 
Since the employer had permitted the short-term use of company vehicles for private purposes in the past and there were no clear instructions to the contrary, it had not been clearly and unambiguously recognizable for the plaintiff that the defendant would under no circumstances permit such use in the future and that any infringement could directly jeopardize the existence of the employment relationship. Rather, the plaintiff was entitled to assume that the supervisor would have agreed had he been on duty.


The unauthorized private use of a company vehicle can –  as far as it has been prohibited without exception - constitute a breach of duty under the employment contract, which can justify a (extraordinary) termination of the employment relationship. 
The decision of the LAG makes it clear that even the one-time, exceptional approval of private vehicle use can justify the requirement of a prior warning. In addition, it again shows how important it is to document in writing a ban on the use of the employer's vehicles for private purposes. 

In the case of termination for conduct-related reasons, a prior warning is not required only if it is already clear in advance that a change in behavior is not to be expected even after a warning has been issued or the breach of duty is so serious that even its first acceptance by the employer is unreasonable and obviously impossible according to objective standards (disputed case law, see BAG 16.12.2021, 2 AZR 356/21). 

This can only be assumed in the case of unauthorized private use if private use was prohibited without exception (at best in writing!) and was always treated as a "red rag" by the employer.  

With regard to the lack of refueling, the Higher Labor Court merely stated that the plaintiff had not driven a long distance and did not assume a significant breach of duty on the part of the plaintiff in this respect either.

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