This article deals with the possibility of dismissal in the case of the theft of low-value items, i.e. an employment law topic. At the same time, however, it is always a topical issue. In particular, the aspect that employers are no longer able to place trust in the affected employee is in the foreground. In many cases, this is seen as an important reason for extraordinary dismissal. But the proportionality of an extraordinary termination also requires an examination. Finally, this leads to a weighing of interests, which may ultimately justify a possibility of termination in the theft of low-value objects.

Procedure at the ECJ in tax matters (freedom of establishment)

We will explain which cases are brought before the European Court of Justice in Luxembourg.

1st Introduction to Termination Possibilities

Many workers consider it unproblematic to take everyday necessities home from the workplace or to eat food from the employer at the workplace. Over 20% of workers have stolen items from the office at least once. [1] Office articles such as ballpoint pens, punches or stationery are particularly sought after. [] 2]

For the thieves is usually not the increase in wealth through valuable objects in the foreground, rather the affected people shy away from the time required for the purchase, such as the trip to the next specialist trade.

Although these are often low-value items, employers regularly issue an extraordinary dismissal for such thefts because they see the relationship of trust disturbed. According to the employers, this is an important reason according to § 626 I BGB.

So it happened in the recent past that a cashier was terminated without notice, who embezzled two empty cans worth 1.30 EUR. [3] The same thing happened to a buffet worker after she ate a slice of the employer’s bee stitch cake while still at work. [4] Also terminated without notice was a baker who had been employed for 25 years, who tried the bread spread produced in the company, because he was informed that the spread was too sharp and over-spiced. [] 5]

Whether there is actually an important reason in § 626 I BGB for the theft of low-value objects, and which further requirements are made for a legally binding extraordinary termination in the case of the theft of low-value objects, will be examined below with reference to the above three examples in this seminar work. First of all, the important reason is addressed. This is the first stage, the two-stage examination required for a final extraordinary termination. [6] Subsequently, the third chapter examines whether the termination is proportionate and thus constitutes the “inevitably last measure”. [7] Chapter 4 deals with the balancing of interests, which is the second part of the two-stage examination. It must be in favour of the announcer if the termination is to be lawful. [] 8]

2nd important reason

This chapter examines the question of whether the theft of low-value goods is an important reason for extraordinary dismissal. The term “important reason” is not described in more detail in § 626 I BGB and thus constitutes an “undefined legal concept”[9].

In the context of an employment relationship, the employee owes a m. § 611 BGB the contractually agreed services and is in addition acc. § 241 I BGB obliges to respect the rights, legal interests and interests of his employer. [10] If he steals property from his employer, there is a breach of his contractual obligations and the employer can no longer fully trust his employee. In such a breach of trust employers regularly see an important reason i.S.d. § 626 I BGB. This is confirmed by constant case law:[11]

In the judgment of the supermarket cashier, who was terminated without notice, who redeemed two empty cargo receipts not belonging to her in the value of 1.30 EUR, it is stated that “the behaviour of the cashier ... is an important reason in accordance with § 626 para. 1 BGB [represented][12]. This view was also shared by the older case-law in a 1984 judgment and saw the theft of a piece of bee stitch cake from the employer’s stock, which the buffet workers consumed on site, fulfilling the first stage of the two-stage examination required for extraordinary dismissal. The Court of First Instance confirms that ‘the unlawful and culpable seizure by the employee of a negligible property owned by the employer ... is in itself capable of being an important reason for extraordinary dismissal’[13].

According to supreme court jurisprudence, it is stated that “unlawful and intentional infringement of the employer’s property or property ... is always suitable as an important reason for extraordinary dismissal, even if the property is of little value.” [] 14]

However, trying the spread in the case of the baker is not an important reason. The court considered it proven that the denied party only tasted the topping and thus did not unlawfully appropriate it. Since there is no important reason, the requirements are acc. § 626 I BGB is not fulfilled and a balance of interests is not necessary. [] 15)

Not only property crimes at the direct employer during working hours are an important reason in the sense of 626 I BGB. Even crimes committed by the employee outside working hours in other companies affiliated with the group can be considered an important reason insofar as the act has an impact on the employment relationship.[16] A clerk at a mail order company in N. bought goods in the physically remote department store in F. of the same group, granting a 10% rebate. After passing the checkout, the house detective discovered that the clerk did not pay for 3 kiwi fruits in her shopping bag. This loss of trust prompted the employer to terminate the contractual relationship without notice. The case-law confirmed the extraordinary dismissal, because “even a theft committed by the employee outside the employment establishment [here: mail order company] and working hours in another remote establishment of the employer (here: department store) is in itself suitable for giving an important reason for immediate dismissal.” 17)

Similarly, the theft of the property of a customer[18] or colleague causes extraordinary termination. This also applies to offences outside the company building.[19] A wholesale beverage delivery driver stole a bottle of brandy while delivering to a customer of his employer. Also in this situation an important reason is to be seen in § 626 BGB. [20] However, property offences committed by the employee which have no effect on the employment relationship cannot be taken into account. [] 21]

Note: If the employer becomes aware of such an offence and makes criminal considerations, the property offence must also have employment consequences. Otherwise, the employer violates his duty of care and may commit a legal error. [] 22]

The value of the stolen things is meaningless. An important reason also exists if the employee himself is not harmed. Thus, the complaint of a domestic worker was rejected, who sought to establish the ineffectiveness of her extraordinary dismissal. The employee had taken small amounts of money in the amount of EUR 3, EUR 4 and EUR 6 from an animal donation fund, the money was intended for an animal welfare association and therefore not for her employer. Since the court in fact saw the relationship of trust disturbed, there was also an important reason in § 626 I BGB.

In the case of property offences at the workplace, the “breach of trust” – in the form of a breach of duty – becomes a consideration for the legal interests of the employer acc. § 241 II BGB – as an important reason and not the "asset reduction of the employer".[24] In the case of property crimes, the final conviction of the employee is not necessary to establish an important reason. Rather, the labour law procedure must be examined separately from any criminal court judgment, whereby according to general rules of evidence the results of the criminal procedure can be used. [25] If no criminal charge has been filed or if the judgment of the criminal court is still pending,[26] the employee disputes the fact and if it is difficult to produce evidence, then it is the safest way for the employer to invoke the suspicion of the offence. [] 27]

“A suspicion notice exists if and insofar as the employer justifies his dismissal on the grounds that it is precisely the suspicion of criminal or non-contractual conduct that he has not considered secure that has destroyed the trust necessary for the continuation of the employment relationship.” “[28]” However, the “mere” suspicion of the offence is not sufficient. There must be objective facts – such as witness statements – that suggest an “urgent” suspicion. [] 29]

Although “the theft of low-value goods (e.g. a piece of bee sting or a lipstick or merchantly written off articles) ... is in itself an important reason for extraordinary termination”[30], the circumstances of the individual case must always be taken into account and certain circumstances must not necessarily be regarded as “unconditional (absolute) reasons for termination”. [31] The important reason is only the first part of the two-stage examination and does not alone entitle you to extraordinary dismissal. In addition to a positive balance of interests, the extraordinary termination must always be the measure of “minimum intervention” (ultima-ratio). [] 32]

According to § 626 I BGB, the continuation of the employment relationship may not be expected of the dismissers. Is it possible for the employer to maintain the employment relationship under other conditions (for example by transferring a cashier to the disposition) or is a regular dismissal or A warning for the purpose, this excludes an extraordinary termination.[33] The extraordinary termination must be the least intervention (ultima-ratio) to eliminate the disturbance of the contractual relationship. In addition, the means of extraordinary dismissal must be proportionate to the disruption of the employment or service relationship. [34]

4th balancing of interests

In addition to a weighing of proportionality, the interests of the dismissal recipient in the maintenance of the contractual relationship must finally be compared with the interests of the dismissal person in the dissolution of the employment contract.[35] In cases [of the theft of low-value objects] ... the weighing of interests is decisive. “[36] For this purpose, for example, the following criteria are eligible on the employee side:

· High priority is given to the social acquis of the employee. This includes, among other things, the loss of entitlements from occupational pension schemes. Equally considerable is also if the employee shortly turns 65. would complete the year of life and could claim his full statutory pension entitlement by complying with the notice period. [37]

· In addition, attention is also paid to the length of service. If the employee has already been employed in the company for several years without incidents of similar offences, the person giving notice may appear reasonable to maintain the employment relationship until the expiry of the ordinary termination period. [38] However, the principle that a longer period of service has an effect in favour of the departing customer may be deviated from if the employer has more confidence in his employee because of the long period of service and thus less control. [39]

· Furthermore, it must be taken into account[40] whether the employee has committed the theft in the (non-inflicted) legal error[41] (excusability in the presence of a prohibition error[42]). If, for example, the employee wrongly assumed on the basis of information (e.g. a lawyer) or information from superiors that taking the object with him was not a property offence, the weighing of interests could be in his favor. [43]

· Due to the financial consequences resulting from the loss of the job, maintenance obligations are generally eligible.[44] However, the theft must be directly related to a worsened asset situation due to the maintenance obligation. [] 45

· In 2007, the Erfurt Commentaries on Labour Law 2007 positively considered the age of the dismissal recipient[46] and his prospects of finding another job[47] in the weighing of interests. However, Beck’s online comments with the status of 01.06.2009 no longer see these two aspects as considerable. [] 48]

Since the relationship of trust is disturbed, the employer can no longer fully familiarize the employee with tasks. The employee may no longer be usable (such as a cashier who has stolen funds from the cash register). Employers must also take into account, inter alia, the following interests:

· Previous property crimes of the employee, which have already been statute-barred, can support permanent reasons if they are in a factual (internal) connection to the current case. [] 49]

A possible commitment of the employer by similar situations in the past. However, the principle of equal treatment does not apply directly, as it is regularly incompatible with the requirements of a case-by-case assessment. [] 50

· An existing risk of repetition. [] 51]

· The risk of imitation by another worker. [] 52]

In addition, the economic situation of the company. [] 53

Only if the impairment of the employer’s contract interests outweighs the economic and social interests of the employee in the continuation of the employment relationship, the extraordinary dismissal is justified. [] 54]

As already described in chapter 2, there is an important reason in the case of the supermarket cashier, who redeemed empties worth 1.30 EUR in her favor. However, the extraordinary termination is only legally binding if the interests of the employer prevail. On the side of the cashier, the labour court has taken into account her 31 years of service as well as her age and the associated (poor) opportunities on the labour market. To the detriment of the cashier, the court has ruled that the value of the stolen items alone does not matter and that absolute reliability and correctness in handling money and empty goods is expected from a cashier. The cashier violated precisely these core tasks and thus significantly violated the relationship of trust. Finally, the balance of interests was to the detriment of the cashier and the legal force of the extraordinary termination was confirmed. [] 55

In the case of the buffet power, which consumed a bee stitch cake of the employer in the workplace, the balancing of interests is in favor of the dismissed. The decision is based mainly on the fact that the employee was obviously unaware of her unlawful conduct when she enjoyed the piece of cake behind the counter and in public, rather than trying to secretly remove the piece of cake from the factory. The court has considered a warning or ordinary termination to be appropriate and has accordingly reinterpreted the extraordinary termination to ordinary termination. [] 56

Even if the theft of the employee is an important reason, the termination without notice is the last resort, and the weighing of interests is in favor of the terminator, the employee must still overcome a hurdle: The exclusion period according to § 626 II BGB of 2 weeks. If this period is not observed by the employee, the extraordinary dismissal is ineffective. [] 57]

With this exclusion period, the legislator wants on the one hand to give the person entitled to terminate the contractual relationship enough time to decide on the other hand, he should decide in a timely manner whether the theft should have termination-related consequences or not. The 2-week notice period complies with the requirement of legal certainty and prevents the employer from “saving up” a reason for dismissal in order to be able to abuse the theft as a means of pressure or as a reason for a later dismissal. [58]

When calculating the exclusion period, certain framework conditions apply:

The exclusion period of § 626 II BGB begins "as soon as the person entitled to dismiss has a correct and as complete as possible positive knowledge of the facts determining the dismissal, which enables him to decide whether the continuation of the employment relationship is reasonable or not"[59]. If the employer’s knowledge extends only on part of the facts and if it is necessary to obtain further information, the period shall be suspended. However, the investigation must proceed in due haste. If a criminal complaint has been filed, the employer may await its result. In the case of a properly established criminal offence and a confession of the employee, however, this is different. ‘ [] 60]

Furthermore, the employee should be heard before the dismissal of the incident. The hearing shall suspend the period up to one week. If the employer terminates on suspicion of the offence, he may not waive the consultation of the employee. [61] However, if he bases his termination on the commission of theft, the extraordinary termination is effective even without a hearing, if the hearing is not culpably omitted. [] 62]

If the employer issues an extraordinary suspicion notice after the two-week period expires, this is ineffective. However, the limitation of the notice of suspicion does not restrict the noticer's right, after the conclusion of the criminal proceedings against the employee, "to pronounce again an extraordinary notice now based on the commission of the offence itself"[63].

Person entitled to dismiss in accordance with § 626 II BGB is the employer and his legal and legal representative. [64] This also includes HR managers who have the right to pronounce dismissals, for example the head of the HR department.

§§ 187 I BGB and 188 II BGB apply accordingly for the start and end of the deadline. Since the works council is to be heard before each termination, it must be noted that the deadline is reduced by 3 days in the result. [65] The employment relationship is terminated upon immediate termination upon receipt of termination. [] 66

If the employment relationship is not terminated within 2 weeks of the occurrence of the reason for dismissal, the person entitled to dismissal bears the burden of presentation and proof, for example, for a late start of the period or a possible suspension of the period. [] 67

As described in the introduction, low-value items are regularly stolen from the workplace. Although almost all employees are aware that this behavior can lead to extraordinary dismissal, most employees do not expect any employment consequences. If the employment relationship is then terminated by the employer, the surprise is often great. The terminated person feels unfairly treated and suspects another reason behind the termination for theft, which does not itself entitle to (extraordinary) termination. Not infrequently, the announcer claims that “the employer used the opportunity to get rid of him”.

The fact that extraordinary dismissal is indispensable as a labour law measure in the theft of low-value objects is made clear by the following example: A private person who employs a cleaning assistant in the private household for a few hours per week will want to end the employment relationship without observing possible notice periods if (low-value) objects are stolen from the household.

An entrepreneur who employs several employees whom he must be able to trust fully must not have fewer opportunities to terminate the contractual relationship. If low-value items are stolen in his company, his confidence in all employees decreases. Under certain circumstances, he may install special protective devices for higher value assets or make major monetary transactions only personally. Once he has found the thief, he must be able to eliminate the unrest in the company.

If you move away from the individual case and examine the complete procedure that has to be followed for extraordinary dismissal, it becomes clear that in addition to the interests of the employer, the interests of the employee are also taken into account and small property crimes cannot be abused as a "universal reason for dismissal". For the employed baker who tried the bread spread made in the company and the buffet power that consumed a piece of bee stitch cake from the employer, this means that the extraordinary dismissals are not legally binding. Only in the case of the cashier, who has embezzled two empties worth 1,30 EUR, the offense justifies the termination without notice.