Termination for “Good Cause” due to Unauthorized Filming

The Regional Labor Court at Berlin ruled in its judgement of November 1, 2017 (docket-no. 24 Ca 4261/17) that the extraordinary dismissal of a cycling coach at the Olympic base in Berlin is effective as the coach filmed female athletes with a hidden camera in the locker room.

Facts

The plaintiff was employed as a cycling coach at the Olympic base in Berlin. He had been taking pictures of female athletes in the changing room with a hidden camera over a long period of time. The employer issued the extraordinary termination of the employment relationship once he had been enabled to inspect the investigation files through the public prosecutor's office.

Decision-making Reasons

The Court dismissed the court action. In its view, the breaches of duty committed by the plaintiff are so serious that they justify the assertion of termination without notice. In addition, the so-called two-week period had been observed. It is true that a termination without notice according to sec. 626 ss. 2 German Civil Code can only take place within a period of two weeks after knowledge of the reasons for termination. However, this deadline has been met. The employer had only gained sufficient knowledge of the grounds for dismissal after the public prosecutor's office investigating the trainer on the basis of these allegations had granted him access to the files in response to multiple requests and inquiries. Subsequently, the notice of termination was given within this period.

Anyway, appeals to the Federal Labor Court of Appellation at Berlin-Brandenburg are admissible.

Tips for practice

Extraordinary termination of an employment contract is always accompanied by many pitfalls for the employer. In addition to a suitable reason for termination, which could not be seriously denied by the plaintiff in this case, the employer giving notice of termination must also observe the two-week period, calculated from the time of knowledge of the circumstances on which the notice of termination is based. Here the employer can get very easily into the "shallows" of suspicion and dismissal. The two legal institutions each represent separate grounds for dismissal, but nevertheless do not stand side by side without any relation, because the suspicion ultimately means only a lesser degree of human conviction than the evidence. The employer may be convinced of the deed, but the court may not be convinced of it; conversely, the employer may only have resigned on suspicion of a breach of duty which the court considers to be proven.

These resulting risks have been partially taken away from the employer by case law. If the dismissal is initially based only on the suspicion of a breach of duty, but if the court is convinced (e. g. due to the taking of evidence) that the breach of duty has been established, this shall not affect the effectiveness of the dismissal for reasons of both termination and works constitution law. The court is not prevented from recognizing the proven breach of duty as grounds for dismissal.

However, as the Labor Court confirmed in its latest decision, the employer is not forced to give notice of termination on suspicion. Rather, it may await the findings of the public prosecutor's preliminary investigation and act accordingly within the two-week period which then expires. Insofar as the Public Prosecutor's Office does not grant access to the files in spite of a corresponding request, this is not at the expense of the party giving notice of termination.