In its ruling of January 19, 2022 (Case No. 12 Sa 705/22), the Düsseldorf Regional Labor Court decided that a serious threat of physical violence against a supervisor and his family justifies extraordinary termination without notice.
1. facts
In the proceedings, the parties disputed the validity of an extraordinary termination and, in the alternative, an ordinary termination. The plaintiff employee, born in 1974, had been employed by the defendant company as a bus driver since 1998.
The employment relationship was already no longer free of burdens before the notice of termination was issued. The plaintiff had received a warning in 2020. In it, the employer accused the employee, among other things, of not having paid travel allowances on time. In early 2020, the plaintiff had a conversation with a personnel dispatcher of the company. Whether the employee threatened the personnel dispatcher and his family during this conversation is disputed between the parties. In any case, the personnel dispatcher filed a report with the police after the conversation. At the police station, the personnel dispatcher stated, among other things: "Today at around 8:15 a.m., the defendant came into the office and immediately asked me whether I was present when the warning was dropped into his mailbox. I answered in the affirmative. He then immediately insulted me several times as an ox and asked me why I was there. He then said that he would beat me and my family if I stood in front of his house again and threw a letter in his mailbox. I feel threatened by that as well. I just want him to leave my family alone. I also feel offended by the term ox".
Further warnings regarding violations of the duty to report under the Continued Remuneration Act followed. The plaintiff employee "contradicted" some of the warnings with a lawyer's letter. Shortly after the conversation, the plaintiff was heard regarding the allegations (threat in the conversation). During this second interview, the plaintiff ducked his supervisor, although the latter had asked the plaintiff several times to refrain from doing so. He denied having threatened the personnel dispatcher.
Subsequently, the employer consulted the works council on the intended extraordinary and, in the alternative, ordinary termination and then also gave notice.
The Labor Court considered the termination to be effective and dismissed the action for protection against dismissal.
Decision 2
In the opinion of the Regional Labor Court, the termination was effective. There was good cause within the meaning of Section 626 (1) of the German Civil Code (Bürgerliches Gesetzbuch - BGB ) because, in the opinion of the court, the plaintiff employee threatened the personnel dispatcher and his family during the interview in question.
The court stated in this respect: "A serious threat by the employee to endanger the life or limb of the employer, superiors and/or work colleagues, for which there is no general justification, can be considered "in itself" as good cause within themeaning of Section 626 (1) of the German Civil Code. Such conduct constitutes a massive disturbance or at least a concrete threat to industrial peace. It represents, without it being relevant to its punishability according to § 241 StGB, a substantial injury of the secondary obligation resulting from § 241 exp. 2 BGB, which is incumbent upon the employee, to take into consideration the justified interests of the employer. This applies regardless of whether the employee's conduct is aimed at bringing about a specific success."
The court considered it proven that the plaintiff employee had threatened the personnel dispatcher during the interview according to these principles. It also found that the threats were "serious threats" that were likely to be taken seriously by the threatened person.
3. conclusion
Employers are often faced with the problem that certain statements made by employees are difficult to prove in court - especially in constellations with only two parties involved. One recommendation here may be to file a criminal complaint immediately in the event of a potential criminal offense (assault, insult, threat) - as was done in this case. In the case of assault, a visit to the doctor may also be advisable. In the author's experience, this leads to the statements of the "own witness" having more weight in a later trial.
