Thuringia State Labor Court: Not clocking out for cigarette breaks means working time fraud

June 16, 2022

In a decision dated May 3.5.2022, 1 (Az: 18 Sa 21/XNUMX), the Thuringia State Labor Court considered an employee's stubborn disregard to record her smoking breaks in the working time recording system as sufficient for an ordinary dismissal based on behavior.

1. FACTS

The plaintiff employee had worked at the defendant employment office since 1990. The evaluation of her working time recording journal showed that the employee had not booked a single break for three days. She had only booked the start and end of working hours on each day. As a result, the company asked the employee to comment on the working hours recorded. The company also pointed out that there was an impression of working time manipulation.

The employee 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 would not repeat such behavior again.

The company then issued an extraordinary notice of termination without notice, or alternatively, an ordinary notice of termination. The labor court granted the application for protection against dismissal against the extraordinary dismissal and otherwise dismissed the lawsuit. The Thuringia State Labor Court confirmed the judgment with the decision discussed here. However, it allowed an appeal to the Federal Labor Court.

2. DECISION

The Thuringia State Labor Court explained the reasons for its decision: The labor court rightly considered the ordinary termination to be effective.

Fraud in working hours, in which the employee pretends to have performed his or her work within a certain period of time, even though this was not actually the case, represents a serious breach of duty. This in itself is capable of being an important reason within the meaning of Section 626 Paragraph 1 of the German Civil Code (BGB). to represent.

Furthermore, repeated and persistent violation of the obligation to correctly record working and break times is also an important reason in itself for an extraordinary termination without notice. Such behavior cannot be excused by nicotine addiction. This justifies at best the frequency of smoking breaks, but not the breach of the obligation to record the break times correctly. Due to the seriousness of the breach of duty, the ordinary termination was also justified from the point of view of balancing interests and despite the plaintiff's employment with the company for more than 30 years.

3. CONCLUSION AND RECOMMENDATION FOR ACTION

The decision shows once again that the labor courts apply very strict standards when it comes to working time fraud. Working time fraud and even suspicion of such fraud can constitute an important reason for extraordinary termination. However, experience shows that employers have the greatest difficulties in proving and complying with the two-week deadline set out in Section 626 Paragraph 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 violating the two-week period of Section 626 Paragraph 2 of the German Civil Code (BGB), but instead from one to be able to make a dismissal based on mere suspicion if necessary. Or to initiate termination proceedings based on the urgent suspicions. These distortions and difficulties will be discussed in a subsequent short article.