bullying at work: one suspects, four times canceled constantly haunted by the newspapers of the Republic of stories about employees who were due to petty theft of property of her employer terminated and turned against this with wrongful dismissal. These stories gain in times of financial crisis, more and more famous. Periodically, the underlying facts in contrast to put those cases in which top managers harder also made criminal offenses guilty and yet unscathed, or even with large settlements, "it came". True to the motto: The little one is that makes you great run. The bee sting case and the case of "Emily" are already the subject of today's language has become. Looking at the reported results of the judizierten litigation, so connect to the untrained observer first doubts about the consistency of the courts of underlying standards. Why is that? This is a very important part because that was not in much of the press according to whether the dismissal was without notice or neat on time and also demonstrated was that the petty theft was detected or was only a suspicion of theft against the employee . Continue to be regularly informed whether the A warning notice because of a similar allegation was preceded or not. In particular:
The requirements for the legality of an extraordinary termination without notice in accordance with § 626 para 1 BGB are much stricter than those for the legality of an ordinary behavioral termination. According to § 626 BGB, the employer may extraordinarily terminate for cause only if there are facts from which he can not be expected to continue the employment relationship until the end of the ordinary, regular contract or agreement specified period of notice. These include the Federal Labor Court reviewed two stages. On the first stage will determine whether the facts, regardless of the individual is suitable to represent a good cause. Unlike ordinary conduct layoffs, the range of qualifying for termination of the employee misconduct is much smaller. An important reason is the sense of a right to termination without notice refer only give reasons that are as serious as those that were originally in the statutory provisions of § § 123, 124 GewO, 72 HGB old version called enumerative. , § 72 para 1 No. 4 HGB old version was following a "per se" good cause always watched the gross insult to the employer. The result is an important per se So mere reason of significantly more serious nature than a regular notice to the behavioral contract entitling misconduct. At the second stage, a comprehensive balancing of interests, taking account of all the circumstances of the case in terms of whether the relationship of the parties is so distorted that they no longer together in the future is not. More important than the distinction between three months' notice or without notice, however, for unemployment because of petty theft, the distinction between whether the employer has given the theft without a reasonable doubt for.
verhackstückten The cases in the press were mainly those of the so-called termination suspicion, that you was from the perspective of the terminating employer, only the suspected employee had committed a petty theft, the employer was not convinced, in other words, that the employee had committed the crime. According to the conception of the Federal Labour Court, the dismissal is a suspected person-related termination type their own kind, is to be strictly distinguished from the behavioral Tatkündigung and is also subject to their own effectiveness conditions. Under the principle of presumption of innocence, the claims in the employment application, may consist of a situation, there are still serious doubts on its existence, are derived at no negative legal consequences for the employee. The termination because of the suspicion of petty theft is therefore contrary to the system and can therefore also be approved by the case law only exceptionally and under additional conditions.
must
On the one existing suspicions be so urgent that it was in reality very little lag behind the unequivocal belief in the existence of the facts. For another, just the mere suspicion that there is a situation could lead to a sustainable rate for the employer no longer trust the fault basis of employment. Third, finally, the suspicion termination protected in formal terms by the possibility that the employer has tried everything to clear up the matter beyond doubt, what necessarily includes the establishment, for before the termination hearing of the worker. Regularly review the legality of suspicion of petty theft because of termination fails because the alleged petty theft, which destroyed not for the continuation of a long-established working relationship necessary trust forever, because that must be regularly next to the petty theft or there are other circumstances. To illustrate the problem may serve the case reproduced below:
Lieselotte Peters, 48 years old, married, two school-age children, has worked for ten years without complaint as a saleswoman in a drugstore. A works council does not exist in the drug store chain. For a year now heads the branch, is employed in Mrs. Peters, a new branch manager, Ms. Alexandra von Rheden. In recent months, there were constant quarrels between the woman and wife of Peter Rehden that related specifically to break the design of Mrs. Peters. When checking a bag at her from the store manager, wife Alexandra of Rheden, found a stick deodorant, which belongs to the assortment of drug store chain. Rehden woman's defense is that it had lawfully Stick Six months ago purchased in another drug store. However, it enjoys no longer have a receipt, since this purchase, return lie too long and you keep supporting documents for the immediate control of the House bill and neck checkout. Rehden woman is now immediate effect of the drug store chain, in the alternative termination deadline. The reason given above, that the theft of the deodorant sticks by Mrs. Peters for the drugstore chain was certain in any case an urgent suspicion of theft against Ms. Peters there.
Dr. jur. Frank Sievert , Hamburg, 10.07.2009
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