Thuringia Regional Labour Court: Not clocking out for cigarette breaks means working time fraud

In a decision of 3 May 2022 (Ref.: 1 Sa 18/21), the Regional Labour Court of Thuringia considered the persistent disregard of an employee to record her smoking breaks as such in the working time recording system as sufficient for an ordinary dismissal for conduct-related reasons.


1. facts

The plaintiff employee had been working for the defendant employment office since 1990. The evaluation of her working time log revealed that the employee had not made a single break entry for three days. She had only recorded the beginning and the end of the working time on the respective days. The company subsequently asked the employee to comment on the recorded working hours. The company also pointed out that there was an impression of working time manipulation.

The worker then commented and stated that the times could be correct. Among other things, she stated that as a smoker she needed breaks. She also stated that she was sorry and that such behaviour would not happen again.

The company then issued an extraordinary termination without notice, alternatively an ordinary termination with notice. The Labour Court granted the application for protection against the extraordinary dismissal and dismissed the rest of the complaint. The Thuringia Regional Labour Court confirmed the ruling in the decision discussed here. However, it allowed an appeal to the Federal Labour Court.


Decision 2

The Regional Labour Court of Thuringia explained the reasons for its decision: The Labour Court had rightly considered the ordinary dismissal to be effective.

Working time fraud in which the employee pretends to have performed his or her work during a certain period of time although this was not actually the case constitutes a serious breach of duty. This in itself is suitable to constitute good cause within the meaning of section 626 (1) of the German Civil Code (BGB).

Furthermore, repeated and persistent violation of the obligation to correctly record his working and break times also constituted an important reason in itself for extraordinary termination without notice. Such behaviour could also not be excused by an addiction to nicotine. Such an addiction at best justified the frequency of the smoking breaks, but not the violation of the duty to correctly record the break times. Due to the seriousness of the breach of duty, the ordinary dismissal was also justified from the point of view of the weighing of interests and despite the plaintiff's length of service of more than 30 years.


3 Conclusion and recommendation for action

The decision shows once again that the labour courts apply very strict standards when it comes to the issue of working time fraud. Working time fraud and even a suspicion of such fraud can constitute an important reason for extraordinary dismissal. Experience shows, however, that employers have the greatest difficulties in proving and complying with the two-week time limit of Section 626 (2) of the German Civil Code (BGB). Especially when it cannot be proven that the employee concerned has committed working time violations, employers are often faced with the question: Continue to investigate with the risk of missing the two-week deadline of section 626, paragraph 2 of the German Civil Code, but in return be able to turn a mere suspicious dismissal into an actual dismissal. Or to initiate dismissal proceedings on the basis of urgent suspicions. These problems and difficulties will be dealt with in the following short article.

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