Petty labor law violations

Labor law for employers and employees

Petty labor law violations

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In general, petty offenses occur more frequently than expected. Basically, petty offenses are "small, insignificant things" or, to put it simply, "trifles. When one speaks of a petty offense, one means a very small penalty. A petty offense is therefore an offense that is not serious.

Petty labor law violations are also not uncommon. For example, stealing a roll as a bakery saleswoman or inserting a wrench as a car mechanic. On the other hand, it is not a petty offense for a federal police officer to fall asleep while on patrol, according to the Wiesbaden Administrative Court, since the activity performed is a core duty arising from his employment relationship. Thus, it is possible to think up an infinite number of different case constellations in which an employee commits a breach of duty within the scope of his or her Employment contract can commit. Nevertheless, these are breaches of duty in all respects. Basically, this can also lead to a Warning by the employee for just such a minor violation in labor law. Rather more rarely, but nevertheless possible are summary dismissals. CancellationsThe public's cry for justice seems to be very great at the moment.

The famous case of Germany's best-known supermarket cashier "Emmely" serves as a popular example of this, as the lady from Berlin was terminated without notice due to embezzlement of two deposit receipts in the amount of € 1.30. The employer was not given a prior warning in this case. It is important to note that in this case no prior warning had been issued by the employer for this or a similar petty offense. Emmely" took legal action against this ruling in Berlin before the Regional Labor Court and also lost in this and the previous instance. The employer argued that the relationship of trust between the employee and the employer had been irreparably destroyed.

Not discouraged by this ruling, "Emmely" went to the highest German labor court. Only this last instance revised the verdict of the regional labor court. The dismissal was not justified because it was only a "non-significant breach of duty. A simple Warning would have been sufficient in this case by the employer. The judge's reasoning went on to say that a very long period of service cannot be destroyed by a petty breach of the employment relationship. "Emmely" consequently had to be reinstated. According to the opinion of the court of last instance, the Berlin Regional Labor Court had not examined the more detailed personal circumstances of the "Emmely" case in sufficient detail and had assumed a significant breach of duty too quickly.

If we look at § 626 of the Civil Code, it itself stipulates that a service relationship, which is nothing other than an employment relationship, may be terminated for good cause without observing the Notice period can be terminated if there are facts that make it impossible to continue the employment relationship until the expiry of the ordinary notice period. The law itself states that all the circumstances of the individual case must be taken into account and that the interests of both parties to the contract, i.e. employer and employee, must be weighed up. Above all, it is relevant that, in the case of termination without notice Cancellation according to paragraph 2 of Section 626 of the German Civil Code (BGB), there is a period of two weeks in which the employer must have given notice to the employee. The start of the period is the point in time at which the employer learns of the circumstance of the breach of duty. What the dismissed employee should do in any case is to have the reason for the dismissal communicated in writing without delay, if this has not yet been done. The notice of termination itself must also be received in writing and in paper form.

However, one must not think that the theft of low-value items (petty offense) cannot result in termination without notice. Because in the rough one must admit that the employer is in the right. The employee is guilty of a breach of duty for which he is responsible vis-à-vis the employer. Thereby it is for the first time unimportant for an Arbeitsrechtler whether it concerns with the theft around 1,30 € Pfandbons or around the "golden cooking spoon". It is important, it must be looked here purposefully on the individual case. For example, there are reasons for a trivial matter if there is no danger of repetition or even a long period of service speaks for the employee and against the employer. However, the employee may also have completely different reasons for his actions. Possibly despair due to debts and lack of money plays a role, so the employer can perhaps look at the act with another eye and show a little more understanding for his own employee. In general, the employer should always try to find the most peaceful and gentle solution for himself and the employee.

The situation was different for a bakery saleswoman who was summarily dismissed because she took a piece of bee sting from the counter without paying for it. This had already been decided by a labor court in 1984. It is also possible, however, to be dismissed for a petty offense and to be given a partial right in the legal dispute. For example, a termination without notice took effect, but the Baden-Württemberg state labor court ruled in favor of a Severance pay in the amount of € 25,000.00 for the terminated party.

Thus, it may be summarized that in the case of theft of low-value items (petty offense), the area of trust between employer and employee is affected, but the "overall package" of the employment relationship with all its circumstances must be considered. Accordingly, as a rule, a warning to the employee is always required first.

Warning must always be considered if the employee has violated his or her contractual obligations. The purpose of the warning is to draw the employee's attention to the breach and to compliance with his duties. Accordingly, he is to be given an opportunity to correct his misconduct. However, this is of course only the case if the misconduct is not a serious breach of duty. Just then in such a case as a petty offense. Reasons for a warning are either poor performance of the employee or his misconduct such as theft itself. It should be noted that the warning must not be left to wait forever. The employer must also act promptly in this case in order not to forfeit its right to issue a warning for the petty offense. For example, a warning half a year after the incident is normally no longer valid. The employer has then in principle forfeited its right to issue a warning. Here, too, it depends on the point in time at which the employer became aware of the petty offense.

In general, the employer should have exhausted all of the sanctions available to him before resorting to such a drastic measure as termination without notice. Cancellation takes effect. The employer must therefore consider whether there is not a milder means of dealing with the petty labor law violation in a different way, and to enable the employer to find a different solution. Often it is also the case that the employer pretends to the employee to play him well, if one gives him instead of the summary dismissal a Termination agreement concerning the employment relationship. However, a termination agreement in general often has many disadvantages for the employee, even because of petty violations in labor law. For example, the employee may waive provisions of the Protection against dismissal, there is no hearing of the Termination by the works council Instead, the protection against dismissal for pregnant women and disabled persons no longer applies, the prospect of a supplementary company pension may be eliminated, or most importantly, you risk a three-month blocking period with regard to unemployment benefits.

If, despite all other circumstances, you do receive your notice of termination, all is not lost. In these cases, the dismissed person should file an action for protection against dismissal, because this is basically possible against all possible types of dismissal. This means that it does not matter whether the termination is ordinary, extraordinary or without notice. However, you must not wait too long, because the complaint must be filed with the competent labor court within the first three weeks after receipt of the notice of termination. On the basis of this, it is not also impossible with many employers that such a possible Severance pay or else to pay a good to very good Job reference is to be created.

An employee who has been summarily dismissed for a trivial violation of employment law should therefore not be completely unsettled and should in no case allow himself to be pushed directly into concluding a termination agreement. Rather, it is inevitable that the future client should seek (specialist) legal advice in any case, because his legal position is often not as unfavorable as it seems or is assumed. The "Emmely" case illustrates this in all respects, even if the path of German jurisdiction sometimes seems stubborn and longer than assumed.