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Created on Friday, 13 March 2009 09:29

Last Updated on Friday, 28 December 2012 18:58

Firing for € 1.30 reasonable though 30 years employed

Normally, a strong suspicion suffices to terminate a labor contract. In Berlin, a lady was fired because she allegedly embezzled deposit vouchers valuing €1.30 that were left behind. The LAG Berlin was called to decide on the reasonability of this decision (February 24, 2009, re 7 Sa 2017/08). This decision was heatedly discussed in the German media.

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A 50 year-old lady had been working for a supermarket for over 30 years without a complaint. Her employer alleged her to have embezzled two deposit vouchers for 48 and 82 cents that were left behind. She was supposed to have cashed in these vouchers but she always denied having done so. However, colleagues testified in court that she did collect the €1.30. The court therefore held the dismissal for valid.

The question discussed in the media was: In the light of the many white collar criminal processes, is such verdict understandable or is it just to fire a person because of missing €1.30? However, this was not the question the court had to decide on. The court held that the money itself is not the issue but the employer's loss of trust. Solely a strong suspicion of a crime based on objective grounds can justify dismissal.

This case was discussed all over Germany. Union representatives assumed a different reason for firing her. The employer just wanted to get a rid of a troublemaker as this woman previously participated in strikes. However founded that opinion might be, it is only an assumption but not legal argumentation. The rules of firing persons are determined by a "prognosis principle". Is it economically reasonable for the employer to have a person working for him that he cannot trust anymore? A cashier must be absolutely reliable. Working with money of a third party demands that the employer can really rely on them. The loss in trust in the employee is even more severe in this case, as she made false statements and wrongly accused a colleague - so the persuasion of the judges.

Disregarding the issue of strike activities, the question still seems justified: In light to 30 years of flawless employment, is this dismissal for 1.30 € reasonable? Does not also the employee have to be protected in trusting that such a mishap would not lead to the most drastic of measures? Though this judgment might be formally correct, it does not come anywhere near to a feeling of justice especially when white-collar criminality is negotiated in "deals", which even lawyer's associations criticize? This is the question that remains yet unanswered.

In the mean time the Federal Labor Court made a final decision in this matter:

The Federal Labor Court, Bundesarbeitsgericht, upheld the complaint of an employee of June 10, 2010 (re 2 AZR 541/09). This court decided in favor of the employee in that the termination of her employment was null and void. Generally, an intentional violation of the employment duties can justify an extraordinary notice of termination even when the caused financial damage is only little. Relevant is §626 I BGB. This provision requires compelling reasons for an immediate termination of employment. The incidents of the individual case and weighing the interests of both parties determine whether or not the reasons for termination are compelling or not. These interests are e.g. the amount of damage, previous (mis)behavior (or “earned capital of trust”) as well as the economic consequences of the breach of contract. This is list is by all means not complete. In certain cases, an admonishment, as a milder measure, suffices to reinstate a shattered trust in the person. The BAG implied these principles – in contrast to the previous courts – and confirmed her complaint. The termination is invalid. Her offense was to cash in deposit vouchers valuing € 1.30 to her own advantage.

This breach of contract is compelling – so the court. It touches the main duties of a cashier and in spite of the little financial value of the deposit coupons and has therefore objectively and seriously damaged the trust of the parties. As a retail store, the employer is especially vulnerable to losses due to multiple minor damages. It might have been that the employee’s defense might have been clumsy and confusing but they did not show any unreliability for the employment. This is especially true because she had worked for Kaisers for more than 30 years without complaint. This long duration of employment indicates a great deal of trust in this person. This trust could not be totally shattered with the one-time misappropriation of such a finically minor sum. Weighing the relative value of keeping or firing, the court clearly decided for keeping.