An off-duty criminal offence does not always justify the immediate dismissal of the employee

The Düsseldorf State Labor Court („LAG Düsseldorf“) ruled in its judgment of April 12, 2018 (Case No. 11 Sa 319/17) that an off-duty criminal offence committed by an employee without reference to the employment relationship and, in the case of a mere abstract threat, without a factual basis, does not justify termination without notice. Whether a lack of aptitude for the future performance of the work tasks results in a reason for termination lying in the person depends on the nature of the offence, the specific duties of the employee and his/her position in the company.

Facts

The plaintiff was employed as a chemical laboratory assistant by the defendant chemical company, which was located in a chemical park with other chemical companies, and had access to numerous chemicals at the defendant. After nearly 25 years of employment, the defendant learned from press reports that the police had found 1.5 kilograms of hazardous chemical mixtures and one kilogram of narcotics in the plaintiff's apartment on August 2, 2016, and that the plaintiff had also been sentenced on August 13, 2016 for attempting an offence involving explosives in April 2016; the plaintiff had attempted to detonate an explosive charge attached to a tree and could be prevented from doing so at the last moment by intervening police officers. After hearing the plaintiff, the defendant terminated the employment relationship without notice by letter dated September 1, 2016 and subsequently on May 26, 2017 by ordinary termination with effect as of December 31, 2017.

The plaintiff remained unsuccessful in the first instance with his dismissal protection complaint, which was directed however only against the termination without notice. The LAG Düsseldorf upheld the plaintiff's appeal against the first-instance decision.

Reasons for the decision

In the opinion of the LAG Düsseldorf, the defendant had no important reason within the meaning of Article 626 (1) of the German Civil Code („BGB“), which would entitle the defendant to extraordinarily terminate the employment relationship without notice.

A termination of the employment relationship based on acts or omissions was ruled out because the defendant had not sufficiently submitted to the court any violations of duties arising from the employment relationship by the plaintiff. For a termination based on suspicion, the LAG Düsseldorf could also not identify sufficient indications in the sense of a concrete suspicion of breach of duty within the framework of the employment relationship solely against the background of the plaintiff's off-duty crimes. A mere abstract danger of breach of duty was not sufficient to justify dismissal. Nor was there a violation of the duty of considerateness by the plaintiff's off-duty offences in the decided case. Admittedly, the duty of considerateness could also be violated by conduct outside the service. A prerequisite, however, would be that legitimate interests of the employer were impaired by the - unlawful - conduct of the employee outside the service, which would be the case if it had negative effects on the company or had a connection to the employment relationship, which the LAG Düsseldorf denied in the decided case.

Finally, in the LAG Düsseldorf's view, there were no sufficient personal grounds for dismissal in the decided case either. Such personal grounds could exist if the employee did not (any longer) possess the required aptitude or ability to perform the work owed in accordance with the employment contract, which could also be justified by criminal conduct outside the service. However, whether a reason for dismissal based on personal reasons would result from this in the individual case depended on the nature of the concrete offence, the concrete work duties of the employee and his/her position in the company. General assessments could not be made, it depended on the circumstances of the individual case.

Notes for practice

The decision of the LAG Düsseldorf is a further example that even blatant off-duty misconduct in the form of criminal offences does not automatically constitute grounds for dismissal. It is advisable for employers to check carefully, before giving notice of termination, whether the conduct outside the service has sufficient connection to the employment relationship and which contractual obligations have been violated. If a termination without notice is to be pronounced, the short termination declaration period must also be kept in mind, which makes swift action by the employer necessary.