
Dismissal for good cause of an Amazon works council due to working time fraud
If the chairman of a works council attends private appointments instead of a booked training course during his working time and subsequently makes false statements in his time recording, this justifies an extraordinary dismissal without notice due to working time fraud. This was held by the Higher Labor Court of Lower Saxony in a ruling dated February 28, 2024 (Ref. 13 TaBV 40/23).
Facts of the case
Amazon operates a logistics center in Winsen/Luhe, whose works council consists of 17 members. The works council’s chairman has been released from his contractual obligations as an employee for the benefit of his works council activities since May 30, 2022. Along with three other works council members, he registers for a three-day training congress (works council conference in Bonn) at the employer's expense. As the employer becomes aware of at a later stage in time, the chairman only attends the first day of the congress. He spends the rest of the time in a café and stays overnight with his ex-wife. In his time sheet, he wrongly states that he attended the congress in full. Because Amazon considers this to be a lie, the company asks the works council to approve the extraordinary termination of the employment relationship with its chairman for good cause. The works council refuses its consent, and Amazon initiates proceedings to replace the consent at the Lüneburg Labor Court. In the course of a hearing, the works council chairman admits that he did not attend the event, but that he wanted to carry out mobile works council work while sitting in the café. According to the plaintiff, as a member of the works council who had been released from his duties, he could claim this right for himself.
Reasons for the decision
After Lüneburg Labor Court had already granted the employer's application for replacement of the works council’s consent, the Amazon works council also lost in the subsequent instance. After hearing the chairman of the works council and questioning two witnesses, the 13th Chamber of the Lower Saxony Higher Labor Court was convinced that the misconduct justified an extraordinary dismissal due to the circumstances of the case. It therefore replaced the consent not given by the works council to the dismissal without notice due to working time fraud. According to the court, the chairman of the works council had himself admitted that he had left the works council meeting on his own authority on the morning of the second day at the latest and had not attended it until the end. This constituted a serious breach of his contractual obligations. In addition, there was at least a strong suspicion that the works council chairman had deliberately made false statements in his time sheet for the second day. The justification that he had performed other works council work in a café was not regarded as credible. It also contradicted previous statements made by the works council chairman towards other works council members who had traveled with him.
Note for the practice
The employment relationship of a works council member enjoys special protection against dismissal. According to Section 15 of the Employment Protection Act ("KSchG"), it may only be terminated for good cause. In accordance with Section 103 of the Works Constitution Act ("BetrVG"), the works council must first be consulted about the intended dismissal and must also approve the dismissal. If consent is not granted, the employer's only option is to take the matter to the labor court. In the so-called consent substitution procedure, the court can replace a refused consent if it is of the opinion that there is good cause within the meaning of Section 626 of the German Civil Code ("BGB") for the intended termination without notice. The effectiveness of the dismissal that has not yet been pronounced is therefore examined incidentally in the consent substitution procedure.
In the present case, both instances regarded the misconduct of the works council chairman as sufficient in terms of a good cause. Working time fraud must be able to justify the termination without notice of a works council member who has been released from his duties. A mere reference to the advantages of mobile work cannot be misused as an excuse for actual leisure activities. It is important to note that the consent substitution procedure does not necessarily end the dispute. If the termination without notice of a works council member is declared after consent has been substituted by a labour court’s decision, it is open to further review in dismissal protection proceedings if the person concerned insists on its invalidity despite the bad omens - a long road for employers, which is difficult to justify with the special need for protection in the event of abuse.
4th July 2024