The Düsseldorf Regional Labor Court decided in its judgment of January 19.01.2022, 12 (Az: 705 Sa 22/XNUMX) that a serious threat to the superior and his family with physical violence justifies an extraordinary termination without notice.
1. FACTS
In the proceedings, the parties disputed the effectiveness of an extraordinary termination and, alternatively, an ordinary termination. The plaintiff employee, who was born in 1974, had been employed by the defendant company as a bus driver since 1998.
Even before the termination was announced, the employment relationship was no longer free of strain. The plaintiff received a warning in 2020. The employer accused the employee, among other things, of not paying travel allowances on time. At the beginning of 2020, the plaintiff had a conversation with a human resources manager at the company. There is a dispute between the parties as to whether the employee threatened the personnel dispatcher and his family during this conversation. In any case, the personnel dispatcher filed a police report after the conversation. The personnel dispatcher stated to the police, among other things: “Today at around 8.15:XNUMX a.m. the accused came into the office and immediately asked me if I was there when the warning was dropped in his mailbox. I answered yes. He then immediately insulted me several times as an ox and asked me why I was there. He said afterwards that he would beat me and my family if I stood outside his house again and dropped a letter in his mailbox. I feel threatened by this too. I just want him to leave my family alone. I also feel insulted by the term ox".
Further warnings followed regarding violations of the reporting obligation under the Continued Payment of Remuneration Act. The plaintiff employee “contradicted” some of the warnings with a letter from a lawyer. Shortly after the conversation, the plaintiff was heard about the allegations (threats in the conversation). During this second conversation, the plaintiff used the first name of his superior, even though the supervisor had asked the plaintiff several times not to do so. He denied threatening the personnel dispatcher.
As a result, the employer consulted the works council about the intended extraordinary or, alternatively, ordinary dismissal and then announced this.
The labor court considered the termination to be effective and dismissed the dismissal protection claim.
2. DECISION
According to the state labor court, the termination was effective. There is an important reason in this regard § 626 para. 1 BGB because, according to the court, the plaintiff employee threatened the personnel dispatcher and his family during the conversation in question.
The court stated: “A serious threat by the employee of danger to the life and limb of the employer, superiors and/or work colleagues, for which there is no general justification, is “in itself” an important reason in the sense of § 626 para. 1 BGB into consideration. Such behavior constitutes a massive disruption or at least a concrete threat to the peace of the company. It represents without it having to do with his criminal liability StGB § 241 would arrive, resulting in a significant injury § 241 para. 2 BGB The additional obligation that arises and affects the employee is to take the legitimate interests of the employer into account. This applies regardless of whether the employee’s behavior is aimed at achieving a specific success.”
The court considered it proven that the plaintiff employee had threatened the personnel dispatcher during the conversation according to these principles. It also found that the threats were “serious threats” that were likely to cause the person being threatened to take them seriously.
3. CONCLUSION
Employers are often faced with the problem that certain statements made by employees are difficult to prove in court - especially in situations with only two parties involved. A recommendation here could be to immediately file a criminal complaint in the event of a potential crime (assault, insult, threat), as happened in this case. In the event of violence, can A visit to the doctor is also advisable. According to the author's experience in a later trial, this means that the statements of the "own witness" have more weight.
